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Sri Rama Vilas Service (P) Ltd Vs. C. Chandrasekaran & Ors | carefully considered the order delivered by the Appellate Tribunal and we see no justification for the criticism made against that order that the decision of the Appellate Tribunal proceeded solely on the ground of the abstract concept of the evil effects of monopoly. The order has referred to the railway which runs parallel to the route and the order has taken into account the fact that the appellant is a monopolist on a part of the route and Raman and Raman (P) Ltd. is a near monopolist on the remaining part of the route. Srinivasan, J. thought that in dealing with the matter, the Appellate Tribunal ignored the fact that there was bound to be some kind of competition between the monopolist and the near monopolist. On the merits we find some difficulty in acceding that a theoretically possible competition between the monopolist and the near monopolist can have any relevance or validity in the present case. A passenger who wants to travel more than 18 miles of the route which is covered by the monopoly of the appellant would naturally prefer to go by the appellants bus all the way, because in trying to take advantage of the near monopolists service on the second sector of the route he would have to face the risk of not having a continuous journey. A competition between the monopolist on the first sector of the route who would have run his buses on the whole distance if he was granted the permit, and the near monopolist so far as the second sector of the route is concerned is itself a matter of a purely theoretical character. There would be obvious difficulties and causes of inconvenience for through passengers to take advantage of this hypothetical competition. If the argument as to the competition between the two powerful operators has to be factual and effective, it must mean that permits should have been granted to both of them over the whole route, and that clearly would mean that smaller operators would be excluded. We are not suggesting that this consideration itself is decisive; we are only pointing out that the ultimate decision of the Appellate Tribunal must have been the result of a proper assessment of all the relevant factors, and so, it would not be safe to issue a writ of certiorari against its decision because some reasons which were urged before the High Court had not been expressly considered by the Appellate Tribunal. Speaking generally and in a broad way, we do not think it could be seriously denied that encouraging bus operators who do not own a fleet of buses and discouraging monopoly on the route is consistent with the interests of the general public which is of paramount importance under S. 47(1)(a) of the Motor Vehicles Act. Besides, the Division Bench has also referred to some other aspects of the matter which would indicate that the Appellate Tribunal was right in not granting a permit to the appellant. In cases of this kind, the High Court should naturally be slow in exercising its jurisdiction under Art. 226. If the order passed by the Appellate Tribunal which is challenged in writ proceedings suffers from infirmities which would justify the issue of a writ under the well recognised principles laid down by judicial decisions in that behalf, the High Court should and ought to interfere but the writs of certiorari should not be issued merely on the ground that all relevant reasons have not been set out in the judgment of the Appellate Tribunal or that the High Court would have taken a different view on the evidence adduced in the proceedings. 11. In support of his case that the impugned order was properly set aside by Srinivasan, J., Mr. Pathak has relied upon the decision of the Court of Appeal in R. V. Agricultural Land Tribunal for the Eastern Province of England, Ex parte Grant, 1956-3 All ER 321. In that case the Court of Appeal was called upon to consider whether the discretion vested in the Tribunal under S. 25 (1)(a) of the Agricultural Holdings Act, 1948, had been validly exercised. The test prescribed by Section 25(1)(a) was that the landlord should show that the carrying out of the purpose for which he proposed to terminate the tenancy in question is desirable in the interests of efficient farming, whether as respects good estate management or good husbandry or otherwise. In coming to the conclusion that the said requirement. had not been satisfied, the Tribunal appears to have relied substantially on the fact that the tenants sought to be dispossessed had been in possession of the lands for many years. It appears that the Court of Appeal took the view that the real grounds for the Tribunals decision on the Section 25 point which appeared from paragraphs 5 and 6 of the statement were ambiguous and to some extent in conflict with each other. Besides, the effect which would result if the landlords request was granted on the tenants other land which had influenced the Tribunal was, in the opinion of the Court of Appeal, irrelevant in considering the applicability of S. 25(1)(a). In other words, the Court of Appeal held that the decision of the Tribunal was vitiated by the fact that it rested at least on some invalid and irrelevant grounds, and that is why a writ of certiorari was ordered to be issued. There can be little doubt that if a decision of a quasi-judicial Tribunal is challenged before the High Court under Art. 226 and it is shown that the said decision is based on irrelevant considerations or on considerations which are invalid in law, a writ will undoubtedly be issued under Art. 226. But the order passed by the Appellate Tribunal in the present case does not suffer from any such infirmity. Therefore, we are satisfied that the decision in the case of Ex parte Grant on which Mr. Pathak relies, does not assist his case. | 0[ds]Speaking generally and in a broad way, we do not think it could be seriously denied that encouraging bus operators who do not own a fleet of buses and discouraging monopoly on the route is consistent with the interests of the general public which is of paramount importance under S. 47(1)(a) of the Motor Vehicles Act. Besides, the Division Bench has also referred to some other aspects of the matter which would indicate that the Appellate Tribunal was right in not granting a permit to the appellant. In cases of this kind, the High Court should naturally be slow in exercising its jurisdiction under Art. 226. If the order passed by the Appellate Tribunal which is challenged in writ proceedings suffers from infirmities which would justify the issue of a writ under the well recognised principles laid down by judicial decisions in that behalf, the High Court should and ought to interfere but the writs of certiorari should not be issued merely on the ground that all relevant reasons have not been set out in the judgment of the Appellate Tribunal or that the High Court would have taken a different view on the evidence adduced in the proceedings11. In support of his case that the impugned order was properly set aside by Srinivasan, J., Mr. Pathak has relied upon the decision of the Court of Appeal in R. V. Agricultural Land Tribunal for the Eastern Province of England, Ex parte Grant, 1956-3 All ER 321. In that case the Court of Appeal was called upon to consider whether the discretion vested in the Tribunal under S. 25 (1)(a) of the Agricultural Holdings Act, 1948, had been validly exercised. The test prescribed by Section 25(1)(a) was that the landlord should show that the carrying out of the purpose for which he proposed to terminate the tenancy in question is desirable in the interests of efficient farming, whether as respects good estate management or good husbandry or otherwise. In coming to the conclusion that the said requirement. had not been satisfied, the Tribunal appears to have relied substantially on the fact that the tenants sought to be dispossessed had been in possession of the lands for many years. It appears that the Court of Appeal took the view that the real grounds for the Tribunals decision on the Section 25 point which appeared from paragraphs 5 and 6 of the statement were ambiguous and to some extent in conflict with each other. Besides, the effect which would result if the landlords request was granted on the tenants other land which had influenced the Tribunal was, in the opinion of the Court of Appeal, irrelevant in considering the applicability of S. 25(1)(a). In other words, the Court of Appeal held that the decision of the Tribunal was vitiated by the fact that it rested at least on some invalid and irrelevant grounds, and that is why a writ of certiorari was ordered to be issued. There can be little doubt that if a decision of a quasi-judicial Tribunal is challenged before the High Court under Art. 226 and it is shown that the said decision is based on irrelevant considerations or on considerations which are invalid in law, a writ will undoubtedly be issued under Art. 226. But the order passed by the Appellate Tribunal in the present case does not suffer from any such infirmity. Therefore, we are satisfied that the decision in the case of Ex parte Grant on which Mr. Pathak relies, does not assist his case. | 0 | 3,319 | 653 | ### Instruction:
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carefully considered the order delivered by the Appellate Tribunal and we see no justification for the criticism made against that order that the decision of the Appellate Tribunal proceeded solely on the ground of the abstract concept of the evil effects of monopoly. The order has referred to the railway which runs parallel to the route and the order has taken into account the fact that the appellant is a monopolist on a part of the route and Raman and Raman (P) Ltd. is a near monopolist on the remaining part of the route. Srinivasan, J. thought that in dealing with the matter, the Appellate Tribunal ignored the fact that there was bound to be some kind of competition between the monopolist and the near monopolist. On the merits we find some difficulty in acceding that a theoretically possible competition between the monopolist and the near monopolist can have any relevance or validity in the present case. A passenger who wants to travel more than 18 miles of the route which is covered by the monopoly of the appellant would naturally prefer to go by the appellants bus all the way, because in trying to take advantage of the near monopolists service on the second sector of the route he would have to face the risk of not having a continuous journey. A competition between the monopolist on the first sector of the route who would have run his buses on the whole distance if he was granted the permit, and the near monopolist so far as the second sector of the route is concerned is itself a matter of a purely theoretical character. There would be obvious difficulties and causes of inconvenience for through passengers to take advantage of this hypothetical competition. If the argument as to the competition between the two powerful operators has to be factual and effective, it must mean that permits should have been granted to both of them over the whole route, and that clearly would mean that smaller operators would be excluded. We are not suggesting that this consideration itself is decisive; we are only pointing out that the ultimate decision of the Appellate Tribunal must have been the result of a proper assessment of all the relevant factors, and so, it would not be safe to issue a writ of certiorari against its decision because some reasons which were urged before the High Court had not been expressly considered by the Appellate Tribunal. Speaking generally and in a broad way, we do not think it could be seriously denied that encouraging bus operators who do not own a fleet of buses and discouraging monopoly on the route is consistent with the interests of the general public which is of paramount importance under S. 47(1)(a) of the Motor Vehicles Act. Besides, the Division Bench has also referred to some other aspects of the matter which would indicate that the Appellate Tribunal was right in not granting a permit to the appellant. In cases of this kind, the High Court should naturally be slow in exercising its jurisdiction under Art. 226. If the order passed by the Appellate Tribunal which is challenged in writ proceedings suffers from infirmities which would justify the issue of a writ under the well recognised principles laid down by judicial decisions in that behalf, the High Court should and ought to interfere but the writs of certiorari should not be issued merely on the ground that all relevant reasons have not been set out in the judgment of the Appellate Tribunal or that the High Court would have taken a different view on the evidence adduced in the proceedings. 11. In support of his case that the impugned order was properly set aside by Srinivasan, J., Mr. Pathak has relied upon the decision of the Court of Appeal in R. V. Agricultural Land Tribunal for the Eastern Province of England, Ex parte Grant, 1956-3 All ER 321. In that case the Court of Appeal was called upon to consider whether the discretion vested in the Tribunal under S. 25 (1)(a) of the Agricultural Holdings Act, 1948, had been validly exercised. The test prescribed by Section 25(1)(a) was that the landlord should show that the carrying out of the purpose for which he proposed to terminate the tenancy in question is desirable in the interests of efficient farming, whether as respects good estate management or good husbandry or otherwise. In coming to the conclusion that the said requirement. had not been satisfied, the Tribunal appears to have relied substantially on the fact that the tenants sought to be dispossessed had been in possession of the lands for many years. It appears that the Court of Appeal took the view that the real grounds for the Tribunals decision on the Section 25 point which appeared from paragraphs 5 and 6 of the statement were ambiguous and to some extent in conflict with each other. Besides, the effect which would result if the landlords request was granted on the tenants other land which had influenced the Tribunal was, in the opinion of the Court of Appeal, irrelevant in considering the applicability of S. 25(1)(a). In other words, the Court of Appeal held that the decision of the Tribunal was vitiated by the fact that it rested at least on some invalid and irrelevant grounds, and that is why a writ of certiorari was ordered to be issued. There can be little doubt that if a decision of a quasi-judicial Tribunal is challenged before the High Court under Art. 226 and it is shown that the said decision is based on irrelevant considerations or on considerations which are invalid in law, a writ will undoubtedly be issued under Art. 226. But the order passed by the Appellate Tribunal in the present case does not suffer from any such infirmity. Therefore, we are satisfied that the decision in the case of Ex parte Grant on which Mr. Pathak relies, does not assist his case.
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Speaking generally and in a broad way, we do not think it could be seriously denied that encouraging bus operators who do not own a fleet of buses and discouraging monopoly on the route is consistent with the interests of the general public which is of paramount importance under S. 47(1)(a) of the Motor Vehicles Act. Besides, the Division Bench has also referred to some other aspects of the matter which would indicate that the Appellate Tribunal was right in not granting a permit to the appellant. In cases of this kind, the High Court should naturally be slow in exercising its jurisdiction under Art. 226. If the order passed by the Appellate Tribunal which is challenged in writ proceedings suffers from infirmities which would justify the issue of a writ under the well recognised principles laid down by judicial decisions in that behalf, the High Court should and ought to interfere but the writs of certiorari should not be issued merely on the ground that all relevant reasons have not been set out in the judgment of the Appellate Tribunal or that the High Court would have taken a different view on the evidence adduced in the proceedings11. In support of his case that the impugned order was properly set aside by Srinivasan, J., Mr. Pathak has relied upon the decision of the Court of Appeal in R. V. Agricultural Land Tribunal for the Eastern Province of England, Ex parte Grant, 1956-3 All ER 321. In that case the Court of Appeal was called upon to consider whether the discretion vested in the Tribunal under S. 25 (1)(a) of the Agricultural Holdings Act, 1948, had been validly exercised. The test prescribed by Section 25(1)(a) was that the landlord should show that the carrying out of the purpose for which he proposed to terminate the tenancy in question is desirable in the interests of efficient farming, whether as respects good estate management or good husbandry or otherwise. In coming to the conclusion that the said requirement. had not been satisfied, the Tribunal appears to have relied substantially on the fact that the tenants sought to be dispossessed had been in possession of the lands for many years. It appears that the Court of Appeal took the view that the real grounds for the Tribunals decision on the Section 25 point which appeared from paragraphs 5 and 6 of the statement were ambiguous and to some extent in conflict with each other. Besides, the effect which would result if the landlords request was granted on the tenants other land which had influenced the Tribunal was, in the opinion of the Court of Appeal, irrelevant in considering the applicability of S. 25(1)(a). In other words, the Court of Appeal held that the decision of the Tribunal was vitiated by the fact that it rested at least on some invalid and irrelevant grounds, and that is why a writ of certiorari was ordered to be issued. There can be little doubt that if a decision of a quasi-judicial Tribunal is challenged before the High Court under Art. 226 and it is shown that the said decision is based on irrelevant considerations or on considerations which are invalid in law, a writ will undoubtedly be issued under Art. 226. But the order passed by the Appellate Tribunal in the present case does not suffer from any such infirmity. Therefore, we are satisfied that the decision in the case of Ex parte Grant on which Mr. Pathak relies, does not assist his case.
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Gandhe Vijay Kumar Vs. Mulji @ Mulchand | Kurian Joseph, J.1. The appellant before this Court is aggrieved by order passed by the High Court wherein concurrent findings on facts with regard to the bonafide requirements of the appellant have been upset holding that "the court can re-appreciate the evidence to test whether the findings of the Rent Controller are correct". We are afraid, the High Court has misdirected itself and exceeded its jurisdiction. In revisional jurisdiction, the Court is expected to see only whether the findings are illegal or perverse in the sense that a reasonably informed person will not enter such a finding. For proper guidance, it would be appropriate to refer to a recent Constitution Bench judgment in Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, 2014(4) R.C.R.(Civil) 162 : 2014(2) R.C.R.(Rent) 210 : 2014(4) Recent Apex Judgments (R.A.J.) 692 : (2014) 9 SCC 78 , at paragraphs-30, 31 and 43:"30. We have already noted in the earlier part of the judgment that although there is some difference in the language employed by the three Rent Control Acts under consideration which provide for revisional jurisdiction but, in our view, the revisional power of the High Court under these Acts is substantially similar and broadly such power has the same scope save and except the power to invoke revisional jurisdiction suo motu unless so provided expressly. None of these statutes confer on revisional authority the power as wide as that of the appellate court or appellate authority despite such power being wider than that provided in Section 115 of the Code of Civil Procedure. The provision under consideration does not permit the High Court to invoke the revisional jurisdiction as the cloak of an appeal in disguise. Revision does not lie under these provisions to bring the orders of the trial court/Rent Controller and the appellate court/appellate authority for rehearing of the issues raised in the original proceedings.31. We are in full agreement with the view expressed in Sri Raja Lakshmi Dyeing Works that where both expressions "appeal" and "revision" are employed in a statute, obviously, the expression "revision" is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression "appeal". The use of two expressions "appeal" and "revision" when used in one statute conferring appellate power and revisional power, we think, is not without purpose and significance. Ordinarily, appellate jurisdiction involves a rehearing while it is not so in the case of revisional jurisdiction when the same statute provides the remedy by way of an "appeal" and so also of a "revision". If that were so, the revisional power would become coextensive with that of the trial court or the subordinate tribunal which is never the case. The classic statement in Dattonpan that revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the Code but, at the same time, it is not wide enough to make the High Court a second court of first appeal, commends to us and we approve the same. We are of the view that in the garb of revisional jurisdiction under the above three rent control statutes, the High Court is not conferred a status of second court of first appeal and the High Court should not enlarge the scope of revisional jurisdiction to that extent."xxx xxx xxx xxx43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity."These principles hold good generally for exercise of revisional power.2. There is no dispute with respect to the landlord-tenant relationship. The bonafide requirement also has been concurrently found by the Rent Controller as well as by the Appellate Authority. The High Court should not have ventured to look into the evidence as if in a first appeal and entered a different finding, though another finding might also be possible. Merely because another view is possible in exercise of the revisional jurisdiction, the High Court cannot upset the factual findings. | 1[ds]These principles hold good generally for exercise of revisional power.2. There is no dispute with respect to therelationship. The bonafide requirement also has been concurrently found by the Rent Controller as well as by the Appellate Authority. The High Court should not have ventured to look into the evidence as if in a first appeal and entered a different finding, though another finding might also be possible. Merely because another view is possible in exercise of the revisional jurisdiction, the High Court cannot upset the factual findings. | 1 | 1,069 | 99 | ### Instruction:
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Kurian Joseph, J.1. The appellant before this Court is aggrieved by order passed by the High Court wherein concurrent findings on facts with regard to the bonafide requirements of the appellant have been upset holding that "the court can re-appreciate the evidence to test whether the findings of the Rent Controller are correct". We are afraid, the High Court has misdirected itself and exceeded its jurisdiction. In revisional jurisdiction, the Court is expected to see only whether the findings are illegal or perverse in the sense that a reasonably informed person will not enter such a finding. For proper guidance, it would be appropriate to refer to a recent Constitution Bench judgment in Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, 2014(4) R.C.R.(Civil) 162 : 2014(2) R.C.R.(Rent) 210 : 2014(4) Recent Apex Judgments (R.A.J.) 692 : (2014) 9 SCC 78 , at paragraphs-30, 31 and 43:"30. We have already noted in the earlier part of the judgment that although there is some difference in the language employed by the three Rent Control Acts under consideration which provide for revisional jurisdiction but, in our view, the revisional power of the High Court under these Acts is substantially similar and broadly such power has the same scope save and except the power to invoke revisional jurisdiction suo motu unless so provided expressly. None of these statutes confer on revisional authority the power as wide as that of the appellate court or appellate authority despite such power being wider than that provided in Section 115 of the Code of Civil Procedure. The provision under consideration does not permit the High Court to invoke the revisional jurisdiction as the cloak of an appeal in disguise. Revision does not lie under these provisions to bring the orders of the trial court/Rent Controller and the appellate court/appellate authority for rehearing of the issues raised in the original proceedings.31. We are in full agreement with the view expressed in Sri Raja Lakshmi Dyeing Works that where both expressions "appeal" and "revision" are employed in a statute, obviously, the expression "revision" is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression "appeal". The use of two expressions "appeal" and "revision" when used in one statute conferring appellate power and revisional power, we think, is not without purpose and significance. Ordinarily, appellate jurisdiction involves a rehearing while it is not so in the case of revisional jurisdiction when the same statute provides the remedy by way of an "appeal" and so also of a "revision". If that were so, the revisional power would become coextensive with that of the trial court or the subordinate tribunal which is never the case. The classic statement in Dattonpan that revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the Code but, at the same time, it is not wide enough to make the High Court a second court of first appeal, commends to us and we approve the same. We are of the view that in the garb of revisional jurisdiction under the above three rent control statutes, the High Court is not conferred a status of second court of first appeal and the High Court should not enlarge the scope of revisional jurisdiction to that extent."xxx xxx xxx xxx43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity."These principles hold good generally for exercise of revisional power.2. There is no dispute with respect to the landlord-tenant relationship. The bonafide requirement also has been concurrently found by the Rent Controller as well as by the Appellate Authority. The High Court should not have ventured to look into the evidence as if in a first appeal and entered a different finding, though another finding might also be possible. Merely because another view is possible in exercise of the revisional jurisdiction, the High Court cannot upset the factual findings.
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### Explanation:
These principles hold good generally for exercise of revisional power.2. There is no dispute with respect to therelationship. The bonafide requirement also has been concurrently found by the Rent Controller as well as by the Appellate Authority. The High Court should not have ventured to look into the evidence as if in a first appeal and entered a different finding, though another finding might also be possible. Merely because another view is possible in exercise of the revisional jurisdiction, the High Court cannot upset the factual findings.
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Netaipada Shah Vs. State of West Bengal | associates created panic in the Station area and in the adjoining locality and also thereby created disturbance of public order. 2. On July 9, 1971, the Government received the representation made by the petitioner against the said order of detention. The Government rejected the representation on July 30, 1971. Thereafter the Government submitted to the Advisory Board the case of the petitioner together with all the relevant papers connected with it including the said representation. By its report, dated August 21, 1971, the Advisory Board expressed its opinion that there was sufficient cause justifying the issuance of the said order of detention. 3. Mr. Dutta, who appeared for the petitioner amicus curiae, could not find any legal infirmity either in the said order of detention or the various steps taken in pursuance of it under the Act. He, however, raised two contentions. His first contention was that the petitioner was illiterate as evidenced by the fact that when served with the ground of detention he acknowledged the receipt thereof not by his signature, but by affixing his left thumb-impression. His argument was that though the petitioner was served with a Bengali translation of the said ground of detention, such service was of no assistance to him since he was illiterate. Therefore, in the absence of the said ground having been read over and explained to him there was no adequate opportunity given to him to make a proper representation. Mr. Dutta contended that the respondent-State had not stated in the counter-affidavit that apart from serving the petitioner with the translation of the said ground of detention the said ground was explained to him in his own language. In our view there is no substance in the contention. Neither in his petition before this Court, nor in his representation to the Government had the petitioner raised the aforesaid contention, with the result that there was neither an occasion not any chances to the respondent to reply to such a contention. It is possible that on realising that the petitioner was an illiterate person the District Magistrate might well have read over and explained to the petitioner the ground of detention as translated in Bengali. Merely because that fact has not been expressly stated in the counter-affidavit, it would not mean that the ground was not explained to the petitioner in Bengali. Had the ground not been read over and explained to him the petitioner would have complained in his representation that he was not in a position to know the precise nature and content of the ground, and that therefore, he was not in a position to make a proper representation. That not being the case, it is impossible to believe that the ground was not read over and explained to him. In the absence of any averment in the petition there was no occasion for the respondent to clarify that the said ground was read over and explained to him. 4. The second contention urged by Mr. Dutta was that the ground of detention was a composite one and fell into three parts, the first part being with regard to the theft of rice from the said wagon, the second part relating to the throwing of bombs at the R. P. F. party and thereby causing injury to one of the said party, and thirdly of creating panic and disturbance of public order in the Station area and the locality adjoining it. Mr. Dutta urged that the first part of the said ground, namely, committing theft of rice from the wagon would not by itself be a ground germane to the objects in respect of which only the detaining authority can pass such an order. Therefore, that ground being irrelevant, the entire order would stand vitiated since it would not be possible to predicate upon which of the three grounds the District Magistrate had arrived at the requisite satisfaction. 5. As stated earlier, the ground of detention served upon the petitioner was a single ground stating the entire transaction which took place in the early hours of June 1, 1971. We do not think that Mr. Dutta would be justified first characterising the said ground as a composite one and then dissecting it into three parts, calling the first part of it as an irrelevant ground. In our view, the ground should be read as a whole and if so read there can be no doubt that the action alleged in the said ground was sufficient to create panic and public disorder in the locality. The aforesaid acts of the petitioner and his associates would fall under Section 3(2)(d) of the Act, namely, committing or instigating any person to commit any offence under the Arms Act, 1959 or the Explosive Substances Act, 1908, where the commission of such offence disturbed or was likely to disturb public order. The acts alleged against the petitioner were that while committing theft of rice from the said wagon he and his associates were not only armed with bombs but that they hurled those bombs at the members of the Railway Protection Force when challenged by them, and in consequence caused burn injuries to one of them. It was not as if the petitioner alone was armed with bombs. He had with him his associates also armed with bombs. It was also not as if the petitioner alone threw a bomb. The ground expressly stated that both the petitioner and his associates hurled bombs at the Police party. Such acts were bound to create panic in the Station area amongst the people residing in or frequenting that area, and must have also caused disturbance of public order. The decision relied on by Mr. Dutta in Ram Krishna Paul v. State of West Bengal ((1972) 1 SCC 570.) , was given on different facts altogether and cannot give any assistance to the petitioner. 6. Thus, neither of the two contentions raised by Mr. Dutta has any force and the two contentions have, therefore to be rejected. | 0[ds]3. Mr. Dutta, who appeared for the petitioner amicus curiae, could not find any legal infirmity either in the said order of detention or the various steps taken in pursuance of it under the Act. He, however, raised two contentions. His first contention was that the petitioner was illiterate as evidenced by the fact that when served with the ground of detention he acknowledged the receipt thereof not by his signature, but by affixing his left. His argument was that though the petitioner was served with a Bengali translation of the said ground of detention, such service was of no assistance to him since he was illiterate. Therefore, in the absence of the said ground having been read over and explained to him there was no adequate opportunity given to him to make a proper representation. Mr. Dutta contended that thee had not stated in thet that apart from serving the petitioner with the translation of the said ground of detention the said ground was explained to him in his own. In our view there is no substance in the contention. Neither in his petition before this Court, nor in his representation to the Government had the petitioner raised the aforesaid contention, with the result that there was neither an occasion not any chances to the respondent to reply to such a contention. It is possible that on realising that the petitioner was an illiterate person the District Magistrate might well have read over and explained to the petitioner the ground of detention as translated in Bengali. Merely because that fact has not been expressly stated in the, it would not mean that the ground was not explained to the petitioner in Bengali. Had the ground not been read over and explained to him the petitioner would have complained in his representation that he was not in a position to know the precise nature and content of the ground, and that therefore, he was not in a position to make a proper representation. That not being the case, it is impossible to believe that the ground was not read over and explained to him. In the absence of any averment in the petition there was no occasion for the respondent to clarify that the said ground was read over and explained to him5. As stated earlier, the ground of detention served upon the petitioner was a single ground stating the entire transaction which took place in the early hours of June 1, 1971. We do not think that Mr. Dutta would be justified first characterising the said ground as a composite one and then dissecting it into three parts, calling the first part of it as an irrelevant ground. In our view, the ground should be read as a whole and if so read there can be no doubt that the action alleged in the said ground was sufficient to create panic and public disorder in the locality. The aforesaid acts of the petitioner and his associates would fall under Section 3(2)(d) of the Act, namely, committing or instigating any person to commit any offence under the Arms Act, 1959 or the Explosive Substances Act, 1908, where the commission of such offence disturbed or was likely to disturb public order. The acts alleged against the petitioner were that while committing theft of rice from the said wagon he and his associates were not only armed with bombs but that they hurled those bombs at the members of the Railway Protection Force when challenged by them, and in consequence caused burn injuries to one of them. It was not as if the petitioner alone was armed with bombs. He had with him his associates also armed with bombs. It was also not as if the petitioner alone threw a bomb. The ground expressly stated that both the petitioner and his associates hurled bombs at the Police party. Such acts were bound to create panic in the Station area amongst the people residing in or frequenting that area, and must have also caused disturbance of public order. The decision relied on by Mr. Dutta in Ram Krishna Paul v. State of West Bengal ((1972) 1 SCC 570.) , was given on different facts altogether and cannot give any assistance to the petitioner. | 0 | 1,373 | 775 | ### 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:
associates created panic in the Station area and in the adjoining locality and also thereby created disturbance of public order. 2. On July 9, 1971, the Government received the representation made by the petitioner against the said order of detention. The Government rejected the representation on July 30, 1971. Thereafter the Government submitted to the Advisory Board the case of the petitioner together with all the relevant papers connected with it including the said representation. By its report, dated August 21, 1971, the Advisory Board expressed its opinion that there was sufficient cause justifying the issuance of the said order of detention. 3. Mr. Dutta, who appeared for the petitioner amicus curiae, could not find any legal infirmity either in the said order of detention or the various steps taken in pursuance of it under the Act. He, however, raised two contentions. His first contention was that the petitioner was illiterate as evidenced by the fact that when served with the ground of detention he acknowledged the receipt thereof not by his signature, but by affixing his left thumb-impression. His argument was that though the petitioner was served with a Bengali translation of the said ground of detention, such service was of no assistance to him since he was illiterate. Therefore, in the absence of the said ground having been read over and explained to him there was no adequate opportunity given to him to make a proper representation. Mr. Dutta contended that the respondent-State had not stated in the counter-affidavit that apart from serving the petitioner with the translation of the said ground of detention the said ground was explained to him in his own language. In our view there is no substance in the contention. Neither in his petition before this Court, nor in his representation to the Government had the petitioner raised the aforesaid contention, with the result that there was neither an occasion not any chances to the respondent to reply to such a contention. It is possible that on realising that the petitioner was an illiterate person the District Magistrate might well have read over and explained to the petitioner the ground of detention as translated in Bengali. Merely because that fact has not been expressly stated in the counter-affidavit, it would not mean that the ground was not explained to the petitioner in Bengali. Had the ground not been read over and explained to him the petitioner would have complained in his representation that he was not in a position to know the precise nature and content of the ground, and that therefore, he was not in a position to make a proper representation. That not being the case, it is impossible to believe that the ground was not read over and explained to him. In the absence of any averment in the petition there was no occasion for the respondent to clarify that the said ground was read over and explained to him. 4. The second contention urged by Mr. Dutta was that the ground of detention was a composite one and fell into three parts, the first part being with regard to the theft of rice from the said wagon, the second part relating to the throwing of bombs at the R. P. F. party and thereby causing injury to one of the said party, and thirdly of creating panic and disturbance of public order in the Station area and the locality adjoining it. Mr. Dutta urged that the first part of the said ground, namely, committing theft of rice from the wagon would not by itself be a ground germane to the objects in respect of which only the detaining authority can pass such an order. Therefore, that ground being irrelevant, the entire order would stand vitiated since it would not be possible to predicate upon which of the three grounds the District Magistrate had arrived at the requisite satisfaction. 5. As stated earlier, the ground of detention served upon the petitioner was a single ground stating the entire transaction which took place in the early hours of June 1, 1971. We do not think that Mr. Dutta would be justified first characterising the said ground as a composite one and then dissecting it into three parts, calling the first part of it as an irrelevant ground. In our view, the ground should be read as a whole and if so read there can be no doubt that the action alleged in the said ground was sufficient to create panic and public disorder in the locality. The aforesaid acts of the petitioner and his associates would fall under Section 3(2)(d) of the Act, namely, committing or instigating any person to commit any offence under the Arms Act, 1959 or the Explosive Substances Act, 1908, where the commission of such offence disturbed or was likely to disturb public order. The acts alleged against the petitioner were that while committing theft of rice from the said wagon he and his associates were not only armed with bombs but that they hurled those bombs at the members of the Railway Protection Force when challenged by them, and in consequence caused burn injuries to one of them. It was not as if the petitioner alone was armed with bombs. He had with him his associates also armed with bombs. It was also not as if the petitioner alone threw a bomb. The ground expressly stated that both the petitioner and his associates hurled bombs at the Police party. Such acts were bound to create panic in the Station area amongst the people residing in or frequenting that area, and must have also caused disturbance of public order. The decision relied on by Mr. Dutta in Ram Krishna Paul v. State of West Bengal ((1972) 1 SCC 570.) , was given on different facts altogether and cannot give any assistance to the petitioner. 6. Thus, neither of the two contentions raised by Mr. Dutta has any force and the two contentions have, therefore to be rejected.
### Response:
0
### Explanation:
3. Mr. Dutta, who appeared for the petitioner amicus curiae, could not find any legal infirmity either in the said order of detention or the various steps taken in pursuance of it under the Act. He, however, raised two contentions. His first contention was that the petitioner was illiterate as evidenced by the fact that when served with the ground of detention he acknowledged the receipt thereof not by his signature, but by affixing his left. His argument was that though the petitioner was served with a Bengali translation of the said ground of detention, such service was of no assistance to him since he was illiterate. Therefore, in the absence of the said ground having been read over and explained to him there was no adequate opportunity given to him to make a proper representation. Mr. Dutta contended that thee had not stated in thet that apart from serving the petitioner with the translation of the said ground of detention the said ground was explained to him in his own. In our view there is no substance in the contention. Neither in his petition before this Court, nor in his representation to the Government had the petitioner raised the aforesaid contention, with the result that there was neither an occasion not any chances to the respondent to reply to such a contention. It is possible that on realising that the petitioner was an illiterate person the District Magistrate might well have read over and explained to the petitioner the ground of detention as translated in Bengali. Merely because that fact has not been expressly stated in the, it would not mean that the ground was not explained to the petitioner in Bengali. Had the ground not been read over and explained to him the petitioner would have complained in his representation that he was not in a position to know the precise nature and content of the ground, and that therefore, he was not in a position to make a proper representation. That not being the case, it is impossible to believe that the ground was not read over and explained to him. In the absence of any averment in the petition there was no occasion for the respondent to clarify that the said ground was read over and explained to him5. As stated earlier, the ground of detention served upon the petitioner was a single ground stating the entire transaction which took place in the early hours of June 1, 1971. We do not think that Mr. Dutta would be justified first characterising the said ground as a composite one and then dissecting it into three parts, calling the first part of it as an irrelevant ground. In our view, the ground should be read as a whole and if so read there can be no doubt that the action alleged in the said ground was sufficient to create panic and public disorder in the locality. The aforesaid acts of the petitioner and his associates would fall under Section 3(2)(d) of the Act, namely, committing or instigating any person to commit any offence under the Arms Act, 1959 or the Explosive Substances Act, 1908, where the commission of such offence disturbed or was likely to disturb public order. The acts alleged against the petitioner were that while committing theft of rice from the said wagon he and his associates were not only armed with bombs but that they hurled those bombs at the members of the Railway Protection Force when challenged by them, and in consequence caused burn injuries to one of them. It was not as if the petitioner alone was armed with bombs. He had with him his associates also armed with bombs. It was also not as if the petitioner alone threw a bomb. The ground expressly stated that both the petitioner and his associates hurled bombs at the Police party. Such acts were bound to create panic in the Station area amongst the people residing in or frequenting that area, and must have also caused disturbance of public order. The decision relied on by Mr. Dutta in Ram Krishna Paul v. State of West Bengal ((1972) 1 SCC 570.) , was given on different facts altogether and cannot give any assistance to the petitioner.
|
M/S Park Leather Industry (P) Ltd, &Anr Vs. The State Of Uttar Pradesh | the head "leather" details the various processes applied in the treatment of hides and skins at all stages, pre-tanning, tanning and post-tanning. Dyeing or colouring is a process which follows tanning but precedes "finishing : (i.e. dressing) in order to make it suitable for the purpose which it is required in commercial usage. Part V of the "Wealth of India", a publication of the Council of Scientific and Industrial Research (1966), dealing with leather under "Industrial Products" explains that "hides and skins are liable to putrefaction and loss unless suitably treated and converted into leather". Structurally, hides and skins have a thick middle layer called corium, which is converted to leather by tanning. The operations involved in leather manufacture however fall into three groups. Pre-tanning operations includes soaking, liming, deliming, bating and pickling, and post-tanning operations are splitting and shaving, neutralising, bleaching, dyeling, fat-liquoring and stuffing, setting out, samming, drying, staking and finishing. These operations bring about chemical changes in the leather substance and influence the physical characteristics of the leather, and different varieties of commercial leather are obtained by suitably adjusting the manufacturing operations. These processes need not be gone into in detail but the passages relied upon clearly show that hides and skins are termed "leather" even as soon as the process of tanning is over and the danger of their putrefaction is put an end to. The entry in the CST Act, however, includes within its scope hides and skins until they are `dressed. This, as we have seen, represents the stage when they undergo the process of finishing and assume a form in which they can be readily utilised for manufacture of various commercial articles. In this view, it is hardly material that coloured leather may be a form of leather or may even be said to represent a different commercial commodity. The statutory entry is comprehensive enough to include the products emerging from hides and skins until the process of dressing or finishing is done." 18. Mr. Pradeep Misra submitted that tanned leather would be covered by the definition of the "agricultural produce" as defined in Section 2(a) of the Act. He submitted that it was merely a processed form of "hides and skins". He submitted that cases relied upon by the appellants were of no help as all of them were under taxing statutes and were merely interpreting terms in the context of the definitions given in those statutes. 19. We have considered the arguments of both the parties. In our view it is clear that the interpretation has to be on the basis of the expression `Agricultural produce as set out in Section 2(a) of the said Act. In so determining decisions based on different statutes such as Sales Tax Laws can be of no assistance. All the cases relied upon by Mr. Sudhir Chandra are cases under the taxing statutes where the interpretation has been given on the basis of the terms as defined in those statutes. 20. A perusal of Section 2(a) of the said makes it clear that an agricultural produce would be a product which is specified in the Schedule or one which is admixture of two or more items and would also include any such item in a processed form. In our view it makes no difference, for the purposes of the said Act, that the concerned item is a different commodity from the one which is included in the Schedule. It is possible that by virtue of an admixture of two or more items or by virtue of processing a different commodity or item may come into existence. Even though a different commodity may come into existence, it would still be an `Agricultural produce. This is best illustrated by Sugarcane which is in Schedule A, Item VIII at Serial No. 14. From Sugarcane, `rab and `gur are manufactured. They are already different commodities or items. Yet they are all included. The specific inclusion of items like "gur", rab, shakkar, Khandsari and jaggery" is to make it clear that merely because it becomes a different item or commodity it is not excluded. 21. We see no reason to go into the difference between `manufacturing and `processing. In the strict sense of the terms there may be a difference. However, we are not required to go into these differences as, in our view, it is very clear, from what has been set out by the Appellants themselves in their affidavit that for hides and skins to be converted into leather or tanned leather all that is required is a process. It is a process of cleaning, curing and adding preservatives. That it is a process has been held by this Court in the case of State of Tamil Nadu v. Mahi Traders and others, etc. (supra). We are also of the view that the finished product i.e. `tanned leather even though it may have changed in physical appearance or chemical combination and even though it may commercially be a different item still remains a `hides and skins. 22. For this reason we are of the opinion that there is no illegality or infirmity in the judgment of the High Court. 23. Even otherwise our above view is supported by the Hindi version in the definition. As has been set out in the case of Krishi Utpadan Mandi Samiti (supra), it is well known in U.P. all legislations are in Hindi. Of course an English version simultaneously published. Undoubtedly, if there is conflict between the two then the English version would prevail. However, if there is no conflict then one can always have assistance of the Hindi version in order to find out whether the word used in English includes a particular item or not. In the Hindi version the word used in `Chamra. There can be no dispute that the term `Chamra would include `leather in all its forms. 24. In this view of the after the appeal stands dismissed. There will, however, be no order as to costs. | 0[ds]19. We have considered the arguments of both the parties. In our view it is clear that the interpretation has to be on the basis of the expression `Agricultural produce as set out in Section 2(a) of the said Act. In so determining decisions based on different statutes such as Sales Tax Laws can be of no assistance. All the cases relied upon by Mr. Sudhir Chandra are cases under the taxing statutes where the interpretation has been given on the basis of the terms as defined in those statutes.A perusal of Section 2(a) of the said makes it clear that an agricultural produce would be a product which is specified in the Schedule or one which is admixture of two or more items and would also include any such item in a processed form. In our view it makes no difference, for the purposes of the said Act, that the concerned item is a different commodity from the one which is included in the Schedule. It is possible that by virtue of an admixture of two or more items or by virtue of processing a different commodity or item may come into existence. Even though a different commodity may come into existence, it would still be an `Agricultural produce. This is best illustrated by Sugarcane which is in Schedule A, Item VIII at Serial No. 14. From Sugarcane, `rab and `gur are manufactured. They are already different commodities or items. Yet they are all included. The specific inclusion of items like "gur", rab, shakkar, Khandsari and jaggery" is to make it clear that merely because it becomes a different item or commodity it is not excluded.We see no reason to go into the difference between `manufacturing and `processing. In the strict sense of the terms there may be a difference. However, we are not required to go into these differences as, in our view, it is very clear, from what has been set out by the Appellants themselves in their affidavit that for hides and skins to be converted into leather or tanned leather all that is required is a process. It is a process of cleaning, curing and adding preservatives. That it is a process has been held by this Court in the case of State of Tamil Nadu v. Mahi Traders and others, etc. (supra). We are also of the view that the finished product i.e. `tanned leather even though it may have changed in physical appearance or chemical combination and even though it may commercially be a different item still remains a `hides and skins.For this reason we are of the opinion that there is no illegality or infirmity in the judgment of the High Court.Even otherwise our above view is supported by the Hindi version in the definition. As has been set out in the case of Krishi Utpadan Mandi Samiti (supra), it is well known in U.P. all legislations are in Hindi. Of course an English version simultaneously published. Undoubtedly, if there is conflict between the two then the English version would prevail. However, if there is no conflict then one can always have assistance of the Hindi version in order to find out whether the word used in English includes a particular item or not. In the Hindi version the word used in `Chamra. There can be no dispute that the term `Chamra would include `leather in all its forms. | 0 | 5,815 | 640 | ### 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:
the head "leather" details the various processes applied in the treatment of hides and skins at all stages, pre-tanning, tanning and post-tanning. Dyeing or colouring is a process which follows tanning but precedes "finishing : (i.e. dressing) in order to make it suitable for the purpose which it is required in commercial usage. Part V of the "Wealth of India", a publication of the Council of Scientific and Industrial Research (1966), dealing with leather under "Industrial Products" explains that "hides and skins are liable to putrefaction and loss unless suitably treated and converted into leather". Structurally, hides and skins have a thick middle layer called corium, which is converted to leather by tanning. The operations involved in leather manufacture however fall into three groups. Pre-tanning operations includes soaking, liming, deliming, bating and pickling, and post-tanning operations are splitting and shaving, neutralising, bleaching, dyeling, fat-liquoring and stuffing, setting out, samming, drying, staking and finishing. These operations bring about chemical changes in the leather substance and influence the physical characteristics of the leather, and different varieties of commercial leather are obtained by suitably adjusting the manufacturing operations. These processes need not be gone into in detail but the passages relied upon clearly show that hides and skins are termed "leather" even as soon as the process of tanning is over and the danger of their putrefaction is put an end to. The entry in the CST Act, however, includes within its scope hides and skins until they are `dressed. This, as we have seen, represents the stage when they undergo the process of finishing and assume a form in which they can be readily utilised for manufacture of various commercial articles. In this view, it is hardly material that coloured leather may be a form of leather or may even be said to represent a different commercial commodity. The statutory entry is comprehensive enough to include the products emerging from hides and skins until the process of dressing or finishing is done." 18. Mr. Pradeep Misra submitted that tanned leather would be covered by the definition of the "agricultural produce" as defined in Section 2(a) of the Act. He submitted that it was merely a processed form of "hides and skins". He submitted that cases relied upon by the appellants were of no help as all of them were under taxing statutes and were merely interpreting terms in the context of the definitions given in those statutes. 19. We have considered the arguments of both the parties. In our view it is clear that the interpretation has to be on the basis of the expression `Agricultural produce as set out in Section 2(a) of the said Act. In so determining decisions based on different statutes such as Sales Tax Laws can be of no assistance. All the cases relied upon by Mr. Sudhir Chandra are cases under the taxing statutes where the interpretation has been given on the basis of the terms as defined in those statutes. 20. A perusal of Section 2(a) of the said makes it clear that an agricultural produce would be a product which is specified in the Schedule or one which is admixture of two or more items and would also include any such item in a processed form. In our view it makes no difference, for the purposes of the said Act, that the concerned item is a different commodity from the one which is included in the Schedule. It is possible that by virtue of an admixture of two or more items or by virtue of processing a different commodity or item may come into existence. Even though a different commodity may come into existence, it would still be an `Agricultural produce. This is best illustrated by Sugarcane which is in Schedule A, Item VIII at Serial No. 14. From Sugarcane, `rab and `gur are manufactured. They are already different commodities or items. Yet they are all included. The specific inclusion of items like "gur", rab, shakkar, Khandsari and jaggery" is to make it clear that merely because it becomes a different item or commodity it is not excluded. 21. We see no reason to go into the difference between `manufacturing and `processing. In the strict sense of the terms there may be a difference. However, we are not required to go into these differences as, in our view, it is very clear, from what has been set out by the Appellants themselves in their affidavit that for hides and skins to be converted into leather or tanned leather all that is required is a process. It is a process of cleaning, curing and adding preservatives. That it is a process has been held by this Court in the case of State of Tamil Nadu v. Mahi Traders and others, etc. (supra). We are also of the view that the finished product i.e. `tanned leather even though it may have changed in physical appearance or chemical combination and even though it may commercially be a different item still remains a `hides and skins. 22. For this reason we are of the opinion that there is no illegality or infirmity in the judgment of the High Court. 23. Even otherwise our above view is supported by the Hindi version in the definition. As has been set out in the case of Krishi Utpadan Mandi Samiti (supra), it is well known in U.P. all legislations are in Hindi. Of course an English version simultaneously published. Undoubtedly, if there is conflict between the two then the English version would prevail. However, if there is no conflict then one can always have assistance of the Hindi version in order to find out whether the word used in English includes a particular item or not. In the Hindi version the word used in `Chamra. There can be no dispute that the term `Chamra would include `leather in all its forms. 24. In this view of the after the appeal stands dismissed. There will, however, be no order as to costs.
### Response:
0
### Explanation:
19. We have considered the arguments of both the parties. In our view it is clear that the interpretation has to be on the basis of the expression `Agricultural produce as set out in Section 2(a) of the said Act. In so determining decisions based on different statutes such as Sales Tax Laws can be of no assistance. All the cases relied upon by Mr. Sudhir Chandra are cases under the taxing statutes where the interpretation has been given on the basis of the terms as defined in those statutes.A perusal of Section 2(a) of the said makes it clear that an agricultural produce would be a product which is specified in the Schedule or one which is admixture of two or more items and would also include any such item in a processed form. In our view it makes no difference, for the purposes of the said Act, that the concerned item is a different commodity from the one which is included in the Schedule. It is possible that by virtue of an admixture of two or more items or by virtue of processing a different commodity or item may come into existence. Even though a different commodity may come into existence, it would still be an `Agricultural produce. This is best illustrated by Sugarcane which is in Schedule A, Item VIII at Serial No. 14. From Sugarcane, `rab and `gur are manufactured. They are already different commodities or items. Yet they are all included. The specific inclusion of items like "gur", rab, shakkar, Khandsari and jaggery" is to make it clear that merely because it becomes a different item or commodity it is not excluded.We see no reason to go into the difference between `manufacturing and `processing. In the strict sense of the terms there may be a difference. However, we are not required to go into these differences as, in our view, it is very clear, from what has been set out by the Appellants themselves in their affidavit that for hides and skins to be converted into leather or tanned leather all that is required is a process. It is a process of cleaning, curing and adding preservatives. That it is a process has been held by this Court in the case of State of Tamil Nadu v. Mahi Traders and others, etc. (supra). We are also of the view that the finished product i.e. `tanned leather even though it may have changed in physical appearance or chemical combination and even though it may commercially be a different item still remains a `hides and skins.For this reason we are of the opinion that there is no illegality or infirmity in the judgment of the High Court.Even otherwise our above view is supported by the Hindi version in the definition. As has been set out in the case of Krishi Utpadan Mandi Samiti (supra), it is well known in U.P. all legislations are in Hindi. Of course an English version simultaneously published. Undoubtedly, if there is conflict between the two then the English version would prevail. However, if there is no conflict then one can always have assistance of the Hindi version in order to find out whether the word used in English includes a particular item or not. In the Hindi version the word used in `Chamra. There can be no dispute that the term `Chamra would include `leather in all its forms.
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Commissioner Of Cental Excise,Chandigarh Vs. M/S. Khanna Industries | question has not been decided by the CEGAT.8. In order to appreciate the rival submissions, the relevant notifications need to be noted. Notification No.175/86-C.E. dated 1.3.1986 reads as follows: "EXEMPTION TO SMALL SCALE UNITS In the exercise of the powers conferred by sub rule (1) of rule 8 of the Central Excise Rules, 1944 and in supersession of the notification of the Government of India, in the Ministry of Finance (Department of Revenue) No. 85/85-Central Excises dated the 17th March, 1985 the Central Government hereby exempts the excisable goods of the description specified in annexure below and falling under the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the "specified goods), and cleared for home consumption on or after the 1st day of April in any financial year, by a manufacturer from one or more factories.” xxx xxx xxx- ANNEXURE Xxx xxx xxx 4. All other goods specified in the said Schedule other than the following, namely :- (i) all goods failing under Chapters 9, 24, 31, 51, 52, 53. .54, 55, 56, 57, 58, 59, 60, 61, 62, 71, 73 and 74; (ii) all goods falling under heading Nos. 21.06, 25.04, 36.03, 40.11, 40:12, 40.13, 87.01, 87.02, 87.03, 81.04, 81.05, 87.06, 87.11, 91.01, 91.02 and 96.13; (iii) all goods fallings under sub-heading Nos. 2101.10, 2101.20, 3304.00, 3305.90, 3307.00, 4005.00, 4006.10, 4008.21 and 9505.10 and (iv) Sandalwood oil strips of plastic intended for weaving of fabric or sacks, polyurethane foam and articles of polyurethane loam broadcast television receiver sets refrigerating and air-conditioning appliances and machinery, and parts and accessories thereof." 9. The said notification was amended by Notification No.223/87-C.E. dated 22.9.1987. The amendment reads as follows: "In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby makes the following further amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 175/86- Central Excise, dated the 1st March, 1986, namely:In the said notification,(I) after paragraph, 6, the following paragraph shall be inserted, namely:-"7. The exemption contained in this notification shall not apply to the specified goods with a brand name where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under this notification:Provided that nothing contained in this paragraph shall be applicable in respect of the specified goods cleared for home consumption before the 1st day of October, 1987".(ii) after Explanation VII, the following Explanation shall be inserted, namely :-"Explanation VIII - "Brand name" or "trade name" shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication o the identity of that person." 10. Clause 7 of the notification after amendment deals with exemption of specified goods and circumstances where the exemption is not available. Stand of the respondent is that if manufacturer need not be a manufacturer of specified goods, and brand name as used is entitled to exemption contained in the notification, it is really of no consequence whether he is manufacturer of goods. The stand is clearly untenable. The notification is goods specific. What is required is that a person, who may be a manufacturer, must be eligible for exemption under the notification in respect of the specified goods. Any other interpretation would render the purpose for which the notification has been issued redundant.11. As noted above, the notification is goods specific. The emphasis is on specified goods. That being so, the impugned judgment of the CEGAT is indefensible. 12. Undisputedly, M/s Arkson Pvt. Ltd. is different from M/s Arkson Engg. Co. In the present case, the issue relates to manufacture of "brass sanitary bathroom fittings". M/s Arkson Engg. Co. manufactures C.I. castings while M/s Arkson Pvt. Ltd. are the owners of the stylized brand name "ARK". However, the said company is engaged in trading of "brass sanitary fittings". Thus, they are traders. Assessees cannot take the benefit of the registration certificate of M/s Arkson Engg. Co. as both are separate legal entities. Therefore, when M/s Khanna Industries and others i.e. the assesses use the brand name/trade name of "ARK" in the context of "brass sanitary fittings" the assessees are not entitled to claim the benefit as the stylized brand name "ARK" belongs to M/s Arkson Pvt. Ltd. and not to M/s Arkson Engg. Co. However, as noted above, M/s Arkson Pvt. Ltd. is a trader and not the manufacturer of "sanitary bath fittings". This is clearly accepted by Ms. Aarti Khanna, Executive Director of M/s Arkson Pvt. Ltd. in her statements on 22.1.1993 and 18.3.1993.13. In the case of Namtech Systems Ltd. v. Commissioner of Central Excise, New Delhi (2000 (115) E.L.T. 238 (Tribunal), the larger Bench of CEGAT has held that affixation of specified good with a brand name of ineligible Indian manufacturer will entail disqualification from exemption. It is further held that the benefit of small scale exemption under Notification No.175/86-CE, as amended, is not available to the specified goods if they are affixed with the brand name or trade name of a trader who is not a manufacturer. The judgment of the larger Bench in Namtech Systems Ltd. (supra) has not been considered by the CEGAT in the present case. The intention is crystal clear that at the relevant time, the unit should be eligible for exemption under the Notification in respect of the specified goods.14. However, as rightly contended by learned counsel for the respondents, the plea relating to non-applicability of extended period of limitation has not been considered by the CEGAT. | 1[ds]10. Clause 7 of the notification after amendment deals with exemption of specified goods and circumstances where the exemption is not available. Stand of the respondent is that if manufacturer need not be a manufacturer of specified goods, and brand name as used is entitled to exemption contained in the notification, it is really of no consequence whether he is manufacturer of goods. The stand is clearly untenable. The notification is goods specific. What is required is that a person, who may be a manufacturer, must be eligible for exemption under the notification in respect of the specified goods. Any other interpretation would render the purpose for which the notification has been issued redundant.11. As noted above, the notification is goods specific. The emphasis is on specified goods. That being so, the impugned judgment of the CEGAT is indefensible.Undisputedly, M/s Arkson Pvt. Ltd. is different from M/s Arkson Engg. Co. In the present case, the issue relates to manufacture of "brass sanitary bathroom fittings". M/s Arkson Engg. Co. manufactures C.I. castings while M/s Arkson Pvt. Ltd. are the owners of the stylized brand name "ARK". However, the said company is engaged in trading of "brass sanitary fittings". Thus, they are traders. Assessees cannot take the benefit of the registration certificate of M/s Arkson Engg. Co. as both are separate legal entities. Therefore, when M/s Khanna Industries and others i.e. the assesses use the brand name/trade name of "ARK" in the context of "brass sanitary fittings" the assessees are not entitled to claim the benefit as the stylized brand name "ARK" belongs to M/s Arkson Pvt. Ltd. and not to M/s Arkson Engg. Co. However, as noted above, M/s Arkson Pvt. Ltd. is a trader and not the manufacturer of "sanitary bath fittings". This is clearly accepted by Ms. Aarti Khanna, Executive Director of M/s Arkson Pvt. Ltd. in her statements on 22.1.1993 and 18.3.1993.13. In the case of Namtech Systems Ltd. v. Commissioner of Central Excise, New Delhi (2000 (115) E.L.T. 238 (Tribunal), the larger Bench of CEGAT has held that affixation of specified good with a brand name of ineligible Indian manufacturer will entail disqualification from exemption. It is further held that the benefit of small scale exemption under Notification No.175/86-CE, as amended, is not available to the specified goods if they are affixed with the brand name or trade name of a trader who is not a manufacturer. The judgment of the larger Bench in Namtech Systems Ltd. (supra) has not been considered by the CEGAT in the present case. The intention is crystal clear that at the relevant time, the unit should be eligible for exemption under the Notification in respect of the specified goods.14. However, as rightly contended by learned counsel for the respondents, the plea relating to non-applicability of extended period of limitation has not been considered by the CEGAT. | 1 | 2,235 | 557 | ### 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:
question has not been decided by the CEGAT.8. In order to appreciate the rival submissions, the relevant notifications need to be noted. Notification No.175/86-C.E. dated 1.3.1986 reads as follows: "EXEMPTION TO SMALL SCALE UNITS In the exercise of the powers conferred by sub rule (1) of rule 8 of the Central Excise Rules, 1944 and in supersession of the notification of the Government of India, in the Ministry of Finance (Department of Revenue) No. 85/85-Central Excises dated the 17th March, 1985 the Central Government hereby exempts the excisable goods of the description specified in annexure below and falling under the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the "specified goods), and cleared for home consumption on or after the 1st day of April in any financial year, by a manufacturer from one or more factories.” xxx xxx xxx- ANNEXURE Xxx xxx xxx 4. All other goods specified in the said Schedule other than the following, namely :- (i) all goods failing under Chapters 9, 24, 31, 51, 52, 53. .54, 55, 56, 57, 58, 59, 60, 61, 62, 71, 73 and 74; (ii) all goods falling under heading Nos. 21.06, 25.04, 36.03, 40.11, 40:12, 40.13, 87.01, 87.02, 87.03, 81.04, 81.05, 87.06, 87.11, 91.01, 91.02 and 96.13; (iii) all goods fallings under sub-heading Nos. 2101.10, 2101.20, 3304.00, 3305.90, 3307.00, 4005.00, 4006.10, 4008.21 and 9505.10 and (iv) Sandalwood oil strips of plastic intended for weaving of fabric or sacks, polyurethane foam and articles of polyurethane loam broadcast television receiver sets refrigerating and air-conditioning appliances and machinery, and parts and accessories thereof." 9. The said notification was amended by Notification No.223/87-C.E. dated 22.9.1987. The amendment reads as follows: "In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby makes the following further amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 175/86- Central Excise, dated the 1st March, 1986, namely:In the said notification,(I) after paragraph, 6, the following paragraph shall be inserted, namely:-"7. The exemption contained in this notification shall not apply to the specified goods with a brand name where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under this notification:Provided that nothing contained in this paragraph shall be applicable in respect of the specified goods cleared for home consumption before the 1st day of October, 1987".(ii) after Explanation VII, the following Explanation shall be inserted, namely :-"Explanation VIII - "Brand name" or "trade name" shall mean a brand name or trade name, whether registered or not, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication o the identity of that person." 10. Clause 7 of the notification after amendment deals with exemption of specified goods and circumstances where the exemption is not available. Stand of the respondent is that if manufacturer need not be a manufacturer of specified goods, and brand name as used is entitled to exemption contained in the notification, it is really of no consequence whether he is manufacturer of goods. The stand is clearly untenable. The notification is goods specific. What is required is that a person, who may be a manufacturer, must be eligible for exemption under the notification in respect of the specified goods. Any other interpretation would render the purpose for which the notification has been issued redundant.11. As noted above, the notification is goods specific. The emphasis is on specified goods. That being so, the impugned judgment of the CEGAT is indefensible. 12. Undisputedly, M/s Arkson Pvt. Ltd. is different from M/s Arkson Engg. Co. In the present case, the issue relates to manufacture of "brass sanitary bathroom fittings". M/s Arkson Engg. Co. manufactures C.I. castings while M/s Arkson Pvt. Ltd. are the owners of the stylized brand name "ARK". However, the said company is engaged in trading of "brass sanitary fittings". Thus, they are traders. Assessees cannot take the benefit of the registration certificate of M/s Arkson Engg. Co. as both are separate legal entities. Therefore, when M/s Khanna Industries and others i.e. the assesses use the brand name/trade name of "ARK" in the context of "brass sanitary fittings" the assessees are not entitled to claim the benefit as the stylized brand name "ARK" belongs to M/s Arkson Pvt. Ltd. and not to M/s Arkson Engg. Co. However, as noted above, M/s Arkson Pvt. Ltd. is a trader and not the manufacturer of "sanitary bath fittings". This is clearly accepted by Ms. Aarti Khanna, Executive Director of M/s Arkson Pvt. Ltd. in her statements on 22.1.1993 and 18.3.1993.13. In the case of Namtech Systems Ltd. v. Commissioner of Central Excise, New Delhi (2000 (115) E.L.T. 238 (Tribunal), the larger Bench of CEGAT has held that affixation of specified good with a brand name of ineligible Indian manufacturer will entail disqualification from exemption. It is further held that the benefit of small scale exemption under Notification No.175/86-CE, as amended, is not available to the specified goods if they are affixed with the brand name or trade name of a trader who is not a manufacturer. The judgment of the larger Bench in Namtech Systems Ltd. (supra) has not been considered by the CEGAT in the present case. The intention is crystal clear that at the relevant time, the unit should be eligible for exemption under the Notification in respect of the specified goods.14. However, as rightly contended by learned counsel for the respondents, the plea relating to non-applicability of extended period of limitation has not been considered by the CEGAT.
### Response:
1
### Explanation:
10. Clause 7 of the notification after amendment deals with exemption of specified goods and circumstances where the exemption is not available. Stand of the respondent is that if manufacturer need not be a manufacturer of specified goods, and brand name as used is entitled to exemption contained in the notification, it is really of no consequence whether he is manufacturer of goods. The stand is clearly untenable. The notification is goods specific. What is required is that a person, who may be a manufacturer, must be eligible for exemption under the notification in respect of the specified goods. Any other interpretation would render the purpose for which the notification has been issued redundant.11. As noted above, the notification is goods specific. The emphasis is on specified goods. That being so, the impugned judgment of the CEGAT is indefensible.Undisputedly, M/s Arkson Pvt. Ltd. is different from M/s Arkson Engg. Co. In the present case, the issue relates to manufacture of "brass sanitary bathroom fittings". M/s Arkson Engg. Co. manufactures C.I. castings while M/s Arkson Pvt. Ltd. are the owners of the stylized brand name "ARK". However, the said company is engaged in trading of "brass sanitary fittings". Thus, they are traders. Assessees cannot take the benefit of the registration certificate of M/s Arkson Engg. Co. as both are separate legal entities. Therefore, when M/s Khanna Industries and others i.e. the assesses use the brand name/trade name of "ARK" in the context of "brass sanitary fittings" the assessees are not entitled to claim the benefit as the stylized brand name "ARK" belongs to M/s Arkson Pvt. Ltd. and not to M/s Arkson Engg. Co. However, as noted above, M/s Arkson Pvt. Ltd. is a trader and not the manufacturer of "sanitary bath fittings". This is clearly accepted by Ms. Aarti Khanna, Executive Director of M/s Arkson Pvt. Ltd. in her statements on 22.1.1993 and 18.3.1993.13. In the case of Namtech Systems Ltd. v. Commissioner of Central Excise, New Delhi (2000 (115) E.L.T. 238 (Tribunal), the larger Bench of CEGAT has held that affixation of specified good with a brand name of ineligible Indian manufacturer will entail disqualification from exemption. It is further held that the benefit of small scale exemption under Notification No.175/86-CE, as amended, is not available to the specified goods if they are affixed with the brand name or trade name of a trader who is not a manufacturer. The judgment of the larger Bench in Namtech Systems Ltd. (supra) has not been considered by the CEGAT in the present case. The intention is crystal clear that at the relevant time, the unit should be eligible for exemption under the Notification in respect of the specified goods.14. However, as rightly contended by learned counsel for the respondents, the plea relating to non-applicability of extended period of limitation has not been considered by the CEGAT.
|
State of Uttar Pradesh and Ors Vs. Pankaj Kumar | his contention that the Rules contemplated that the intimation has to be sent through post, but no such intimation was issued to the respondent. It is contended that the mere issue of SMS intimating the date of further process in the selection would not be sufficient. He contends that the mobile number would be furnished by the candidates at the time of making an application and in the instant case since about 3 years had elapsed from the date of the application, there could be no assumption that the candidate would possess the very same mobile connection and the number. In that light, it is contended that the appropriate course to ensure proper service would be through postal intimation, which had not been done in the instant case. It is in that background, the Learned Single Judge as also the Division Bench has arrived at the conclusion that an opportunity is required to be furnished as the employment opportunity should not be jeopardized. He therefore, seeks that this appeal be dismissed. 7. In the light of the rival contentions, having perused the order passed by the learned Single Judge as also the conclusion reached by the Division Bench of the High Court, it would indicate that the High Court has not granted the relief to the respondent by recording a finding with regard to the noncompliance of any requirement envisaged under the Rule or procedure provided in the advertisement calling for applications. The Rule as referred to by the learned counsel for the respondent mentions that the intimation is to be provided by postal communication or any other mode. In that view, there is no bar in intimating the candidates through SMS, more particularly when large number of candidates had to appear in the subsequent process and majority of the candidates have appeared for document verification and physical fitness test pursuant to intimation by SMS. Even, so far as the respondent is concerned, it is not his case that he had not received the SMS. It is only a technical contention that he ought to have been intimated through postal communication. When a requirement is stated in the application to provide the mobile number, it is with a purpose to communicate and in the instant case, the appellants have sent the SMS to the very number which had been furnished by the appellant. 8. Though, the learned counsel for the respondent vaguely contended that a person may not retain the same number after a long lapse of time, no material has been brought on record to indicate that the respondent did not possess the said mobile connection as on the date the SMS was sent. Further, the argument as put forth by the learned counsel for the respondent that one may not retain the same number after lapse of long time would hold good even for the address which is furnished for issue of postal communication. In a given case, the person may not reside in the same address which is furnished for communication as it existed when the application is made. In such circumstance, it is for the candidate to intimate any change to the authorities, since such change would be within the knowledge of the candidate and it is in his or her own interest such intimation is to be made. In the instant case, when there can be no dispute that the respondent was in possession of the same mobile connection, the detail of which was furnished in the application and the SMS had been sent to the respondent, the respondent having not acted on the same cannot at his own convenience make request to be permitted to participate in the selection process which has already concluded, not having utilized the opportunity which was available to him. 9. Further, from the very nature of consideration made by the High Court, it is seen that it was the casual attitude of the respondent which had brought about the situation though the High Court has mildly put it as, inadvertence and provided an opportunity. It is no doubt true, that as contended by the respondent in the objection statement, an opportunity was granted to about 151 candidates to take part in the selection process as indicated in the notice dated 14.01.2019 issued pursuant to directions issued by the High Court in the writ petitions which were filed. It is to be noticed that the respondent was not vigilant at the earliest point in time but it is only after such consideration had been made by the High Court and an opportunity was granted to certain other persons, the respondent had chosen to file the writ petition by merely contending that he had made a request to permit him to take part in the process on 15.01.2019 and he had not been permitted. 10. In that background, it is to be noted that another learned Single Judge of the High Court in a similar circumstance had dismissed Writ Petition No.3647 of 2019 filed by one Radha Sharma seeking similar relief and the said order was upheld by the Division Bench in Special Appeal Defective No.903 of 2019. The order of the learned Single Judge was dated 13.05.2019. In any event, though indulgence was shown in the earlier cases, a line has to be drawn at some stage as otherwise, the recruitment process undertaken by the competent authorities would be meaningless without a time line and the next recruitment process will also get effected since determination of the number of vacancies for the next process will keep fluctuating. The process herein had commenced in the year 2015 and the document verification along with the physical fitness test was held in 2018. Several candidates who were permitted pursuant to the order of the High Court had taken part in early January 2019. Since, sufficient time has elapsed thereafter it would not be appropriate to make an exception in the case of the respondent at this stage as otherwise the trickle would continue. | 0[ds]7. In the light of the rival contentions, having perused the order passed by the learned Single Judge as also the conclusion reached by the Division Bench of the High Court, it would indicate that the High Court has not granted the relief to the respondent by recording a finding with regard to the noncompliance of any requirement envisaged under the Rule or procedure provided in the advertisement calling for applications. The Rule as referred to by the learned counsel for the respondent mentions that the intimation is to be provided by postal communication or any other mode. In that view, there is no bar in intimating the candidates through SMS, more particularly when large number of candidates had to appear in the subsequent process and majority of the candidates have appeared for document verification and physical fitness test pursuant to intimation by SMS. Even, so far as the respondent is concerned, it is not his case that he had not received the SMS. It is only a technical contention that he ought to have been intimated through postal communication. When a requirement is stated in the application to provide the mobile number, it is with a purpose to communicate and in the instant case, the appellants have sent the SMS to the very number which had been furnished by the appellant.8. Though, the learned counsel for the respondent vaguely contended that a person may not retain the same number after a long lapse of time, no material has been brought on record to indicate that the respondent did not possess the said mobile connection as on the date the SMS was sent. Further, the argument as put forth by the learned counsel for the respondent that one may not retain the same number after lapse of long time would hold good even for the address which is furnished for issue of postal communication. In a given case, the person may not reside in the same address which is furnished for communication as it existed when the application is made. In such circumstance, it is for the candidate to intimate any change to the authorities, since such change would be within the knowledge of the candidate and it is in his or her own interest such intimation is to be made. In the instant case, when there can be no dispute that the respondent was in possession of the same mobile connection, the detail of which was furnished in the application and the SMS had been sent to the respondent, the respondent having not acted on the same cannot at his own convenience make request to be permitted to participate in the selection process which has already concluded, not having utilized the opportunity which was available to him.9. Further, from the very nature of consideration made by the High Court, it is seen that it was the casual attitude of the respondent which had brought about the situation though the High Court has mildly put it as, inadvertence and provided an opportunity. It is no doubt true, that as contended by the respondent in the objection statement, an opportunity was granted to about 151 candidates to take part in the selection process as indicated in the notice dated 14.01.2019 issued pursuant to directions issued by the High Court in the writ petitions which were filed. It is to be noticed that the respondent was not vigilant at the earliest point in time but it is only after such consideration had been made by the High Court and an opportunity was granted to certain other persons, the respondent had chosen to file the writ petition by merely contending that he had made a request to permit him to take part in the process on 15.01.2019 and he had not been permitted.10. In that background, it is to be noted that another learned Single Judge of the High Court in a similar circumstance had dismissed Writ Petition No.3647 of 2019 filed by one Radha Sharma seeking similar relief and the said order was upheld by the Division Bench in Special Appeal Defective No.903 of 2019. The order of the learned Single Judge was dated 13.05.2019. In any event, though indulgence was shown in the earlier cases, a line has to be drawn at some stage as otherwise, the recruitment process undertaken by the competent authorities would be meaningless without a time line and the next recruitment process will also get effected since determination of the number of vacancies for the next process will keep fluctuating. The process herein had commenced in the year 2015 and the document verification along with the physical fitness test was held in 2018. Several candidates who were permitted pursuant to the order of the High Court had taken part in early January 2019. Since, sufficient time has elapsed thereafter it would not be appropriate to make an exception in the case of the respondent at this stage as otherwise the trickle would continue. | 0 | 2,178 | 881 | ### 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:
his contention that the Rules contemplated that the intimation has to be sent through post, but no such intimation was issued to the respondent. It is contended that the mere issue of SMS intimating the date of further process in the selection would not be sufficient. He contends that the mobile number would be furnished by the candidates at the time of making an application and in the instant case since about 3 years had elapsed from the date of the application, there could be no assumption that the candidate would possess the very same mobile connection and the number. In that light, it is contended that the appropriate course to ensure proper service would be through postal intimation, which had not been done in the instant case. It is in that background, the Learned Single Judge as also the Division Bench has arrived at the conclusion that an opportunity is required to be furnished as the employment opportunity should not be jeopardized. He therefore, seeks that this appeal be dismissed. 7. In the light of the rival contentions, having perused the order passed by the learned Single Judge as also the conclusion reached by the Division Bench of the High Court, it would indicate that the High Court has not granted the relief to the respondent by recording a finding with regard to the noncompliance of any requirement envisaged under the Rule or procedure provided in the advertisement calling for applications. The Rule as referred to by the learned counsel for the respondent mentions that the intimation is to be provided by postal communication or any other mode. In that view, there is no bar in intimating the candidates through SMS, more particularly when large number of candidates had to appear in the subsequent process and majority of the candidates have appeared for document verification and physical fitness test pursuant to intimation by SMS. Even, so far as the respondent is concerned, it is not his case that he had not received the SMS. It is only a technical contention that he ought to have been intimated through postal communication. When a requirement is stated in the application to provide the mobile number, it is with a purpose to communicate and in the instant case, the appellants have sent the SMS to the very number which had been furnished by the appellant. 8. Though, the learned counsel for the respondent vaguely contended that a person may not retain the same number after a long lapse of time, no material has been brought on record to indicate that the respondent did not possess the said mobile connection as on the date the SMS was sent. Further, the argument as put forth by the learned counsel for the respondent that one may not retain the same number after lapse of long time would hold good even for the address which is furnished for issue of postal communication. In a given case, the person may not reside in the same address which is furnished for communication as it existed when the application is made. In such circumstance, it is for the candidate to intimate any change to the authorities, since such change would be within the knowledge of the candidate and it is in his or her own interest such intimation is to be made. In the instant case, when there can be no dispute that the respondent was in possession of the same mobile connection, the detail of which was furnished in the application and the SMS had been sent to the respondent, the respondent having not acted on the same cannot at his own convenience make request to be permitted to participate in the selection process which has already concluded, not having utilized the opportunity which was available to him. 9. Further, from the very nature of consideration made by the High Court, it is seen that it was the casual attitude of the respondent which had brought about the situation though the High Court has mildly put it as, inadvertence and provided an opportunity. It is no doubt true, that as contended by the respondent in the objection statement, an opportunity was granted to about 151 candidates to take part in the selection process as indicated in the notice dated 14.01.2019 issued pursuant to directions issued by the High Court in the writ petitions which were filed. It is to be noticed that the respondent was not vigilant at the earliest point in time but it is only after such consideration had been made by the High Court and an opportunity was granted to certain other persons, the respondent had chosen to file the writ petition by merely contending that he had made a request to permit him to take part in the process on 15.01.2019 and he had not been permitted. 10. In that background, it is to be noted that another learned Single Judge of the High Court in a similar circumstance had dismissed Writ Petition No.3647 of 2019 filed by one Radha Sharma seeking similar relief and the said order was upheld by the Division Bench in Special Appeal Defective No.903 of 2019. The order of the learned Single Judge was dated 13.05.2019. In any event, though indulgence was shown in the earlier cases, a line has to be drawn at some stage as otherwise, the recruitment process undertaken by the competent authorities would be meaningless without a time line and the next recruitment process will also get effected since determination of the number of vacancies for the next process will keep fluctuating. The process herein had commenced in the year 2015 and the document verification along with the physical fitness test was held in 2018. Several candidates who were permitted pursuant to the order of the High Court had taken part in early January 2019. Since, sufficient time has elapsed thereafter it would not be appropriate to make an exception in the case of the respondent at this stage as otherwise the trickle would continue.
### Response:
0
### Explanation:
7. In the light of the rival contentions, having perused the order passed by the learned Single Judge as also the conclusion reached by the Division Bench of the High Court, it would indicate that the High Court has not granted the relief to the respondent by recording a finding with regard to the noncompliance of any requirement envisaged under the Rule or procedure provided in the advertisement calling for applications. The Rule as referred to by the learned counsel for the respondent mentions that the intimation is to be provided by postal communication or any other mode. In that view, there is no bar in intimating the candidates through SMS, more particularly when large number of candidates had to appear in the subsequent process and majority of the candidates have appeared for document verification and physical fitness test pursuant to intimation by SMS. Even, so far as the respondent is concerned, it is not his case that he had not received the SMS. It is only a technical contention that he ought to have been intimated through postal communication. When a requirement is stated in the application to provide the mobile number, it is with a purpose to communicate and in the instant case, the appellants have sent the SMS to the very number which had been furnished by the appellant.8. Though, the learned counsel for the respondent vaguely contended that a person may not retain the same number after a long lapse of time, no material has been brought on record to indicate that the respondent did not possess the said mobile connection as on the date the SMS was sent. Further, the argument as put forth by the learned counsel for the respondent that one may not retain the same number after lapse of long time would hold good even for the address which is furnished for issue of postal communication. In a given case, the person may not reside in the same address which is furnished for communication as it existed when the application is made. In such circumstance, it is for the candidate to intimate any change to the authorities, since such change would be within the knowledge of the candidate and it is in his or her own interest such intimation is to be made. In the instant case, when there can be no dispute that the respondent was in possession of the same mobile connection, the detail of which was furnished in the application and the SMS had been sent to the respondent, the respondent having not acted on the same cannot at his own convenience make request to be permitted to participate in the selection process which has already concluded, not having utilized the opportunity which was available to him.9. Further, from the very nature of consideration made by the High Court, it is seen that it was the casual attitude of the respondent which had brought about the situation though the High Court has mildly put it as, inadvertence and provided an opportunity. It is no doubt true, that as contended by the respondent in the objection statement, an opportunity was granted to about 151 candidates to take part in the selection process as indicated in the notice dated 14.01.2019 issued pursuant to directions issued by the High Court in the writ petitions which were filed. It is to be noticed that the respondent was not vigilant at the earliest point in time but it is only after such consideration had been made by the High Court and an opportunity was granted to certain other persons, the respondent had chosen to file the writ petition by merely contending that he had made a request to permit him to take part in the process on 15.01.2019 and he had not been permitted.10. In that background, it is to be noted that another learned Single Judge of the High Court in a similar circumstance had dismissed Writ Petition No.3647 of 2019 filed by one Radha Sharma seeking similar relief and the said order was upheld by the Division Bench in Special Appeal Defective No.903 of 2019. The order of the learned Single Judge was dated 13.05.2019. In any event, though indulgence was shown in the earlier cases, a line has to be drawn at some stage as otherwise, the recruitment process undertaken by the competent authorities would be meaningless without a time line and the next recruitment process will also get effected since determination of the number of vacancies for the next process will keep fluctuating. The process herein had commenced in the year 2015 and the document verification along with the physical fitness test was held in 2018. Several candidates who were permitted pursuant to the order of the High Court had taken part in early January 2019. Since, sufficient time has elapsed thereafter it would not be appropriate to make an exception in the case of the respondent at this stage as otherwise the trickle would continue.
|
Commissioner Of Income Tax, Bombay Vs. Rasiklal Maneklal (H.U.F.) & Ors | and powers as well as all liabilities and duties of the Shorrock Co. were to stand transferred and vest with effect from January 1, 1960, in the New Shorrock Co. The scheme of amalgamation provided further for an increase in the share capital of the New Shorrock Co. and it permitted the creation of 14, 625 new ordinary shares of the face value of Rs. 125 each of the transferee-company. The newly created shares were to rank pari passu with the existing shares of the transferee-company in all respects. Under the scheme, the New Shorrock Co., as the transferee company, was directed to allot to members of the Shorrock Co., the transferor-company, one share in the transferee-company for every two shares of the transferor-company held by them. The order of the court directed that the Shorrock Co. should Me a certified copy of the order with the Registrar of Companies within 14 days for registration, and on such certified copy being delivered, the transferor-company would stand dissolved and the Registrar of Companies was to place all the documents relating to the transferor-company on the file relating to the transferee company and the folios relating to the two companies were to be consolidated accordinglyDuring the assessment proceedings for the assessment year 1961-62, the previous year being the financial year ended March 31, 1961, the Income-tax Officer, although apprised of the fact of the scheme of amalgamation and of the acquisition by the assessee of 45 shares of the New Shorrock Co., omitted to consider the applicability or otherwise of section 12B of the Indian Income-tax Act, 1922. On January 21, 1964, the Commissioner of Income-tax issued a notice under section 33B of the Act to the assessee stating that the receipt of 45 shares of the New Shorrock Co. "in exchange" for his original holding of 90 shares in the Shorrock Co. in December, 1960, had resulted in an assessable profit, and this aspect had been overlooked by the Income-tax Officer when making the regular assessment, and, therefore, he proposed a revision of the assessment. After hearing the assessee, the Commissioner of Income-tax passed an order dated January 29, 1964, directing the Income-tax Officer to revise the assessment and to include an amount of Rs. 49, 350 representing the capital gain resulting from the transaction of the acquisition of 45 shares of New Shorrock Co. in the place of the 90 shares held in the Shorrock Co. On appeal by the assessee before the Income-tax Appellate Tribunal, the Appellate Tribunal held that the transaction represented neither an exchange nor a relinquishment and, therefore, section 12B of the Act was not attracted. 3. At the instance of the Revenue, the Appellate Tribunal referred the following questions to the High Court for its opinion " 1. Whether, on the facts and in the circumstances of the case, the sum of Rs. 49, 350 could be assessed in the hands of the assessee as capital gains as having accrued to the assessee by exchange or relinquishment as provided for under section 12B of the Act ?2. If the answer to the above question is in the affirmative, whether the said sum of Rs. 49, 350 was assessable in the year 1961-62 ?" 4. Before the High Court, the Revenue did not contend that the transaction constituted a sale or a transfer and the parties confined themselves to the point as to whether the transaction represented an exchange or relinquishment for the purposes of section 12B. The High Court took the view that no exchange can be said to have taken place on the allotment of the 45 shares of the New Shorrock Co. under the scheme of amalgamation. Nor, in the opinion of the High Court, did it constitute a relinquishment. In the result, the High Court answered both the questions in favour of the assessee and against the Revenue. 5. The relevant portion of section 12B of the Act provides: "2B. Capital gains.-(1) The tax shall be payable by an assessee under the head Capital gains in respect of any profits or gains arising from the sale, exchange, relinquishment or transfer of a capital asset effected after the 31st day of March, 1956, and such profits and Ions shall be deemed to be income of the previous year in which the sale, exchange, relinquishment or transfer took place." 6. The sole question is whether the receipt of the 45 shares of the New Shorrock Co. upon amalgamation by reason of the shareholding of the 90 shares of the Shorrock Co. can be described as an "exchange" or "relinquishment" within the meaning of section 12B of the Act. It seems plain to us that no exchange is involved in the transaction. An exchange involves the transfer of property by one person to another and reciprocally the transfer of property by that other to the first person. There must be mutual transfer of ownership of one thing for the ownership of another. In the present case, the assessee cannot be said to have transferred any property to any one. When he was allotted shares of the New Shorrock Co., he was entitled to such allotment because of his holding 90 shares of the Shorrock Co. The holding of the 90 shares in the Shorrock Co. was merely a qualifying condition entitling the assessee to the allotment of the 45 shares of the New Shorrock Co. The dissolution of the Shorrock Co. deprived the holding of the 90 shares of that company of all valueOn the question whether there was any relinquishment, the decision must again be against the Revenue. A relinquishment takes place when the owner withdraws himself from the property and abandons his rights thereto. It presumes that the property continues to exist after the relinquishment. Upon amalgamation, the shares of the Shorrock Co., as has been mentioned earlier, lost all value as that company stood dissolved. There is no relinquishment. 7. The connected cases raise similar questions and are dealt with accordingly. 8. | 0[ds]The relevant portion of section 12B of the ActCapital gains.-(1) The tax shall be payable by an assessee under the head Capital gains in respect of any profits or gains arising from the sale, exchange, relinquishment or transfer of a capital asset effected after the 31st day of March, 1956, and such profits and Ions shall be deemed to be income of the previous year in which the sale, exchange, relinquishment or transfer tookseems plain to us that no exchange is involved in the transaction. An exchange involves the transfer of property by one person to another and reciprocally the transfer of property by that other to the first person. There must be mutual transfer of ownership of one thing for the ownership of another. In the present case, the assessee cannot be said to have transferred any property to any one. When he was allotted shares of the New Shorrock Co., he was entitled to such allotment because of his holding 90 shares of the Shorrock Co. The holding of the 90 shares in the Shorrock Co. was merely a qualifying condition entitling the assessee to the allotment of the 45 shares of the New Shorrock Co. The dissolution of the Shorrock Co. deprived the holding of the 90 shares of that company of all valueOn the question whether there was any relinquishment, the decision must again be against the Revenue. A relinquishment takes place when the owner withdraws himself from the property and abandons his rights thereto. It presumes that the property continues to exist after the relinquishment. Upon amalgamation, the shares of the Shorrock Co., as has been mentioned earlier, lost all value as that company stood dissolved. There is noconnected cases raise similar questions and are dealt with accordingly | 0 | 1,390 | 323 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
and powers as well as all liabilities and duties of the Shorrock Co. were to stand transferred and vest with effect from January 1, 1960, in the New Shorrock Co. The scheme of amalgamation provided further for an increase in the share capital of the New Shorrock Co. and it permitted the creation of 14, 625 new ordinary shares of the face value of Rs. 125 each of the transferee-company. The newly created shares were to rank pari passu with the existing shares of the transferee-company in all respects. Under the scheme, the New Shorrock Co., as the transferee company, was directed to allot to members of the Shorrock Co., the transferor-company, one share in the transferee-company for every two shares of the transferor-company held by them. The order of the court directed that the Shorrock Co. should Me a certified copy of the order with the Registrar of Companies within 14 days for registration, and on such certified copy being delivered, the transferor-company would stand dissolved and the Registrar of Companies was to place all the documents relating to the transferor-company on the file relating to the transferee company and the folios relating to the two companies were to be consolidated accordinglyDuring the assessment proceedings for the assessment year 1961-62, the previous year being the financial year ended March 31, 1961, the Income-tax Officer, although apprised of the fact of the scheme of amalgamation and of the acquisition by the assessee of 45 shares of the New Shorrock Co., omitted to consider the applicability or otherwise of section 12B of the Indian Income-tax Act, 1922. On January 21, 1964, the Commissioner of Income-tax issued a notice under section 33B of the Act to the assessee stating that the receipt of 45 shares of the New Shorrock Co. "in exchange" for his original holding of 90 shares in the Shorrock Co. in December, 1960, had resulted in an assessable profit, and this aspect had been overlooked by the Income-tax Officer when making the regular assessment, and, therefore, he proposed a revision of the assessment. After hearing the assessee, the Commissioner of Income-tax passed an order dated January 29, 1964, directing the Income-tax Officer to revise the assessment and to include an amount of Rs. 49, 350 representing the capital gain resulting from the transaction of the acquisition of 45 shares of New Shorrock Co. in the place of the 90 shares held in the Shorrock Co. On appeal by the assessee before the Income-tax Appellate Tribunal, the Appellate Tribunal held that the transaction represented neither an exchange nor a relinquishment and, therefore, section 12B of the Act was not attracted. 3. At the instance of the Revenue, the Appellate Tribunal referred the following questions to the High Court for its opinion " 1. Whether, on the facts and in the circumstances of the case, the sum of Rs. 49, 350 could be assessed in the hands of the assessee as capital gains as having accrued to the assessee by exchange or relinquishment as provided for under section 12B of the Act ?2. If the answer to the above question is in the affirmative, whether the said sum of Rs. 49, 350 was assessable in the year 1961-62 ?" 4. Before the High Court, the Revenue did not contend that the transaction constituted a sale or a transfer and the parties confined themselves to the point as to whether the transaction represented an exchange or relinquishment for the purposes of section 12B. The High Court took the view that no exchange can be said to have taken place on the allotment of the 45 shares of the New Shorrock Co. under the scheme of amalgamation. Nor, in the opinion of the High Court, did it constitute a relinquishment. In the result, the High Court answered both the questions in favour of the assessee and against the Revenue. 5. The relevant portion of section 12B of the Act provides: "2B. Capital gains.-(1) The tax shall be payable by an assessee under the head Capital gains in respect of any profits or gains arising from the sale, exchange, relinquishment or transfer of a capital asset effected after the 31st day of March, 1956, and such profits and Ions shall be deemed to be income of the previous year in which the sale, exchange, relinquishment or transfer took place." 6. The sole question is whether the receipt of the 45 shares of the New Shorrock Co. upon amalgamation by reason of the shareholding of the 90 shares of the Shorrock Co. can be described as an "exchange" or "relinquishment" within the meaning of section 12B of the Act. It seems plain to us that no exchange is involved in the transaction. An exchange involves the transfer of property by one person to another and reciprocally the transfer of property by that other to the first person. There must be mutual transfer of ownership of one thing for the ownership of another. In the present case, the assessee cannot be said to have transferred any property to any one. When he was allotted shares of the New Shorrock Co., he was entitled to such allotment because of his holding 90 shares of the Shorrock Co. The holding of the 90 shares in the Shorrock Co. was merely a qualifying condition entitling the assessee to the allotment of the 45 shares of the New Shorrock Co. The dissolution of the Shorrock Co. deprived the holding of the 90 shares of that company of all valueOn the question whether there was any relinquishment, the decision must again be against the Revenue. A relinquishment takes place when the owner withdraws himself from the property and abandons his rights thereto. It presumes that the property continues to exist after the relinquishment. Upon amalgamation, the shares of the Shorrock Co., as has been mentioned earlier, lost all value as that company stood dissolved. There is no relinquishment. 7. The connected cases raise similar questions and are dealt with accordingly. 8.
### Response:
0
### Explanation:
The relevant portion of section 12B of the ActCapital gains.-(1) The tax shall be payable by an assessee under the head Capital gains in respect of any profits or gains arising from the sale, exchange, relinquishment or transfer of a capital asset effected after the 31st day of March, 1956, and such profits and Ions shall be deemed to be income of the previous year in which the sale, exchange, relinquishment or transfer tookseems plain to us that no exchange is involved in the transaction. An exchange involves the transfer of property by one person to another and reciprocally the transfer of property by that other to the first person. There must be mutual transfer of ownership of one thing for the ownership of another. In the present case, the assessee cannot be said to have transferred any property to any one. When he was allotted shares of the New Shorrock Co., he was entitled to such allotment because of his holding 90 shares of the Shorrock Co. The holding of the 90 shares in the Shorrock Co. was merely a qualifying condition entitling the assessee to the allotment of the 45 shares of the New Shorrock Co. The dissolution of the Shorrock Co. deprived the holding of the 90 shares of that company of all valueOn the question whether there was any relinquishment, the decision must again be against the Revenue. A relinquishment takes place when the owner withdraws himself from the property and abandons his rights thereto. It presumes that the property continues to exist after the relinquishment. Upon amalgamation, the shares of the Shorrock Co., as has been mentioned earlier, lost all value as that company stood dissolved. There is noconnected cases raise similar questions and are dealt with accordingly
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J. C. Jain Vs. R. A. Pathak And Others | employee has been permitted by cl. (b) whenever the amount in dispute happens to be Rs. 50/- or more in respect of an individual applicant or in respect of the unpaid group the Legislature could have intended that the employer should have no right of appeal against a direction made on a single consolidated application even though the total liability flowing from the said direction may exceed the specified amount of Rs. 300 by several thousands. In the present case the amount directed to be paid is more than Rs. 22,000 but it has been held that since each one of the employees is not ordered to be paid Rs. 300 or more there is no right of appeal. On general considerations, therefore, the conclusion which we have reached on a fair and reasonable construction of cl. (a) appears to be well-founded. 9. There is another point to which reference must be made. Section 16(3) empowers the authority to consolidate several applications made by individual employees and hear them as a single application as though it was presented under S. 16, sub-s. (2); and it is urged that this procedural provision cannot and should not have a decisive effect on the employers right to prefer an appeal under S. 17 (1)(a). If several applications made by individual employees are not consolidated and heard as a single application under S. 16 (3) and separate directions are issued, then the employer would have the right to prefer an appeal only where the total amount directed to be paid exceeds Rs. 300. On the other hand, if the authority consolidates the said applications and makes a direction in respect of the total amount to be paid to the employees belonging to the unpaid group the employer may be entitled to make an appeal even though each one of the employees receives less than Rs. 300. It would be anomalous it is said, that the right to appeal should depend upon the exercise of discretion vested in the authority under S. 16(3). We are unable to see the force of this argument.We apprehend that ordinarily when several applications are made by the employees belonging to the same unpaid group the authority would prefer to treat the said applications as a single application under S. 16(3); but apart from this practical under S. 16(3); but apart from this practical aspect of the matter, if S. 16(3) permits the consolidation of the several applications and in consequences of consolidation they are assimilated to the position of a single application contemplated by S. 16(2), the only question which has to be considered in dealing with the competence of the appeal is to see whether the direction appealed against satisfied the test of S. 17(1) (a), and on that point we feel no hesitation in holding that the test prescribed by S. 17 (1)(a) is that the direction should be for the payment of an amount exceeding Rs. 300. 10. Besides, we think it would not be right to assume that it is anomalous if different consequences follow from the adoption of different procedure in trying employees claims and an appeal does not lie where several applications are tried separately while it lies where similar applications are heard as a single application under S. 16(3).This difference is clearly intended by the Legislature.A similar different consequence is prescribed in the matter of the award of compensation by S. 15, sub-s. (3) and S. 16, sub-s. (2) respectively. Therefore, the argument based on the alleged anomaly cannot have any validity in construing S. 17(1)(a). 11. Incidentally, if one or more employees in the same unpaid group are paid an amount exceeding Rs. 300 and the rest are paid less than Rs. 300 on the alternative constructions, the employer would be entitled to make an appeal only in respect of a workman to whom more than Rs. 300 is ordered to be paid and not against the others though the total amount directed to be paid to them may exceed by far the amount of Rs. 300. In such a case, if the appeal preferred by the employer in respect of the amount ordered to be paid to some of the workmen succeeds that would leave outstanding two conflicting decisions, with the result that a large number of employees in the same unpaid group may get the amount under the direction of the authority while those who were awarded more than Rs. 300 by the authority would get a smaller amount under the decision of the appellant authority. We are referring to this anomalous aspect of the matter only for the purpose of showing that whether the words used in the relevant clause are clear and unambiguous considerations of a possible hypothetical anomaly cannot affect its plain meaning. That is why we prefer to leave anomalies on both sides out of account and confine ourselves to the construction of the words used in S. 17(1) (a). If the said words had been reasonably capable of two constructions it would have been relevant to consider which of the two constructions would avoid any possible anomalies. We would, therefore hold that the appellate authority was in error in dismissing the appeal preferred before it by the appellant on the ground that it was incompetent under S.17 (1) (a). We would like to add that the question about the construction of S. 17(1) (a) has been considered by the Madras High Court, Union of India v. S. P. Nataraja Sastrigal, AIR 1952 Mad 808 , and A. C. Arumugham v. Manager, Jawahar Mills Ltd., Salem Junction, AIR 1956 Mad 79, the Calcutta High Court, (Promode Ranjan v. R. N. Mullick, AIR 1959 Cal 318 : 63 Cal WN 6), and Assam High Court (Cachar Cha Sramik Union v. Manager, Martycherra Tea Estate, AIR 1959 Assam 13), and they have all differed from the view taken by the Bombay High Court and have construed S. 17(1) (a) in the same manner as we have done. | 1[ds]6. sub-s. (2), and a direction has been issued for the payment of the specified amount, it is the said specified amount that must be considered in deciding whether the test prescribed by S. 17(1)(a) is satisfied or not.The view taken by the Bombay High Court, however, is that S. 17(1)(a) is applicable only where the amount directed to be paid to each single applicant exceeds Rs. 300.In other words, on this view the expression the total sum directed to be paid" used in S. 17 (1) (a) is construed to mean the total sum directed to be paid to each individual applicant, and that clearly involves the addition of certain words in the section. If the application is made by a single employee an appeal can be preferred by the employer against the direction issued in such an application if the total sum directed to be paid to the applicant exceeds Rs. 300; but if a single application is made on behalf of several employees belonging to the same unpaid group the test to be applied is not whether a direction has been issued that the employer should pay Rs. 300 or more to each one of the applicants; the test clearly is whether a direction has been issued on the said single application calling upon the employer to pay to the applicants Rs. 300 or more. Reading S. 17(1)(a) by itself we feel no difficulty in reaching this conclusion7. It is, however, urged that in construing S. 17 (1) (a) it would be relevant and material to compare and contrast its provisions with those of cl. (b) of S. 17, sub-s. (1). Providing for the right of an employee to make an appeal this clause requires that the total amount of wages claimed to have been witheld from him or from the unpaid group to which he belonged should exceed Rs. 50/-. It is emphasised that this clause refers expressly to the case of an individual employee as well as the case of employees belonging to an unpaid group; and the argument is that since cl. (a) does not use the words "unpaid group" it indicates that the direction about the payment of the amount prescribed by the said clause has reference to each individual employee. We are not impressed by this argument. Since the Act has provided for the making of a single application on behalf of a number of employed persons belonging to the same unpaid group as well as separate applications made by individual workmen it was unnecessary to refer to the persons employed in the unpaid group while providing for appeals against directions made under S. 15(3). On the other hand, if the Legislature had intended that the right to prefer an appeal should accrue to the employer only if Rs. 300/- or more are directed to be paid to each individual employee it would have used appropriate additional words in cl. (a). Therefore the argument based upon the use of the words "unpaid group" in cl. (b) is not of any assistance in construing cl. (a)8. We are also inclined to think that it could not have been the intention of the Legislature to confer on the employer the right to prefer an appeal only if Rs. 300/- or more are ordered to be paid to each one of the applicants. It is true that the policy of the Act is to provide for speedy remedy to the employees in respect of unauthorised deductions made by the employer or in respect of delayed wages; and with that object the Act provides for the appointment of the authority and prescribes the summary procedure for the decision of the claims; but it seems very unlikely that whereas an appeal by the employee has been permitted by cl. (b) whenever the amount in dispute happens to be Rs. 50/- or more in respect of an individual applicant or in respect of the unpaid group the Legislature could have intended that the employer should have no right of appeal against a direction made on a single consolidated application even though the total liability flowing from the said direction may exceed the specified amount of Rs. 300 by several thousands. In the present case the amount directed to be paid is more than Rs. 22,000 but it has been held that since each one of the employees is not ordered to be paid Rs. 300 or more there is no right of appeal. On general considerations, therefore, the conclusion which we have reached on a fair and reasonable construction of cl. (a) appears to be well-founded11. Incidentally, if one or more employees in the same unpaid group are paid an amount exceeding Rs. 300 and the rest are paid less than Rs. 300 on the alternative constructions, the employer would be entitled to make an appeal only in respect of a workman to whom more than Rs. 300 is ordered to be paid and not against the others though the total amount directed to be paid to them may exceed by far the amount of Rs. 300. In such a case, if the appeal preferred by the employer in respect of the amount ordered to be paid to some of the workmen succeeds that would leave outstanding two conflicting decisions, with the result that a large number of employees in the same unpaid group may get the amount under the direction of the authority while those who were awarded more than Rs. 300 by the authority would get a smaller amount under the decision of the appellant authority. We are referring to this anomalous aspect of the matter only for the purpose of showing that whether the words used in the relevant clause are clear and unambiguous considerations of a possible hypothetical anomaly cannot affect its plain meaning. That is why we prefer to leave anomalies on both sides out of account and confine ourselves to the construction of the words used in S. 17(1) (a). If the said words had been reasonably capable of two constructions it would have been relevant to consider which of the two constructions would avoid any possible anomalies. We would, therefore hold that the appellate authority was in error in dismissing the appeal preferred before it by the appellant on the ground that it was incompetent under S.17 (1) (a). | 1 | 3,384 | 1,190 | ### 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:
employee has been permitted by cl. (b) whenever the amount in dispute happens to be Rs. 50/- or more in respect of an individual applicant or in respect of the unpaid group the Legislature could have intended that the employer should have no right of appeal against a direction made on a single consolidated application even though the total liability flowing from the said direction may exceed the specified amount of Rs. 300 by several thousands. In the present case the amount directed to be paid is more than Rs. 22,000 but it has been held that since each one of the employees is not ordered to be paid Rs. 300 or more there is no right of appeal. On general considerations, therefore, the conclusion which we have reached on a fair and reasonable construction of cl. (a) appears to be well-founded. 9. There is another point to which reference must be made. Section 16(3) empowers the authority to consolidate several applications made by individual employees and hear them as a single application as though it was presented under S. 16, sub-s. (2); and it is urged that this procedural provision cannot and should not have a decisive effect on the employers right to prefer an appeal under S. 17 (1)(a). If several applications made by individual employees are not consolidated and heard as a single application under S. 16 (3) and separate directions are issued, then the employer would have the right to prefer an appeal only where the total amount directed to be paid exceeds Rs. 300. On the other hand, if the authority consolidates the said applications and makes a direction in respect of the total amount to be paid to the employees belonging to the unpaid group the employer may be entitled to make an appeal even though each one of the employees receives less than Rs. 300. It would be anomalous it is said, that the right to appeal should depend upon the exercise of discretion vested in the authority under S. 16(3). We are unable to see the force of this argument.We apprehend that ordinarily when several applications are made by the employees belonging to the same unpaid group the authority would prefer to treat the said applications as a single application under S. 16(3); but apart from this practical under S. 16(3); but apart from this practical aspect of the matter, if S. 16(3) permits the consolidation of the several applications and in consequences of consolidation they are assimilated to the position of a single application contemplated by S. 16(2), the only question which has to be considered in dealing with the competence of the appeal is to see whether the direction appealed against satisfied the test of S. 17(1) (a), and on that point we feel no hesitation in holding that the test prescribed by S. 17 (1)(a) is that the direction should be for the payment of an amount exceeding Rs. 300. 10. Besides, we think it would not be right to assume that it is anomalous if different consequences follow from the adoption of different procedure in trying employees claims and an appeal does not lie where several applications are tried separately while it lies where similar applications are heard as a single application under S. 16(3).This difference is clearly intended by the Legislature.A similar different consequence is prescribed in the matter of the award of compensation by S. 15, sub-s. (3) and S. 16, sub-s. (2) respectively. Therefore, the argument based on the alleged anomaly cannot have any validity in construing S. 17(1)(a). 11. Incidentally, if one or more employees in the same unpaid group are paid an amount exceeding Rs. 300 and the rest are paid less than Rs. 300 on the alternative constructions, the employer would be entitled to make an appeal only in respect of a workman to whom more than Rs. 300 is ordered to be paid and not against the others though the total amount directed to be paid to them may exceed by far the amount of Rs. 300. In such a case, if the appeal preferred by the employer in respect of the amount ordered to be paid to some of the workmen succeeds that would leave outstanding two conflicting decisions, with the result that a large number of employees in the same unpaid group may get the amount under the direction of the authority while those who were awarded more than Rs. 300 by the authority would get a smaller amount under the decision of the appellant authority. We are referring to this anomalous aspect of the matter only for the purpose of showing that whether the words used in the relevant clause are clear and unambiguous considerations of a possible hypothetical anomaly cannot affect its plain meaning. That is why we prefer to leave anomalies on both sides out of account and confine ourselves to the construction of the words used in S. 17(1) (a). If the said words had been reasonably capable of two constructions it would have been relevant to consider which of the two constructions would avoid any possible anomalies. We would, therefore hold that the appellate authority was in error in dismissing the appeal preferred before it by the appellant on the ground that it was incompetent under S.17 (1) (a). We would like to add that the question about the construction of S. 17(1) (a) has been considered by the Madras High Court, Union of India v. S. P. Nataraja Sastrigal, AIR 1952 Mad 808 , and A. C. Arumugham v. Manager, Jawahar Mills Ltd., Salem Junction, AIR 1956 Mad 79, the Calcutta High Court, (Promode Ranjan v. R. N. Mullick, AIR 1959 Cal 318 : 63 Cal WN 6), and Assam High Court (Cachar Cha Sramik Union v. Manager, Martycherra Tea Estate, AIR 1959 Assam 13), and they have all differed from the view taken by the Bombay High Court and have construed S. 17(1) (a) in the same manner as we have done.
### Response:
1
### Explanation:
to be paid to each single applicant exceeds Rs. 300.In other words, on this view the expression the total sum directed to be paid" used in S. 17 (1) (a) is construed to mean the total sum directed to be paid to each individual applicant, and that clearly involves the addition of certain words in the section. If the application is made by a single employee an appeal can be preferred by the employer against the direction issued in such an application if the total sum directed to be paid to the applicant exceeds Rs. 300; but if a single application is made on behalf of several employees belonging to the same unpaid group the test to be applied is not whether a direction has been issued that the employer should pay Rs. 300 or more to each one of the applicants; the test clearly is whether a direction has been issued on the said single application calling upon the employer to pay to the applicants Rs. 300 or more. Reading S. 17(1)(a) by itself we feel no difficulty in reaching this conclusion7. It is, however, urged that in construing S. 17 (1) (a) it would be relevant and material to compare and contrast its provisions with those of cl. (b) of S. 17, sub-s. (1). Providing for the right of an employee to make an appeal this clause requires that the total amount of wages claimed to have been witheld from him or from the unpaid group to which he belonged should exceed Rs. 50/-. It is emphasised that this clause refers expressly to the case of an individual employee as well as the case of employees belonging to an unpaid group; and the argument is that since cl. (a) does not use the words "unpaid group" it indicates that the direction about the payment of the amount prescribed by the said clause has reference to each individual employee. We are not impressed by this argument. Since the Act has provided for the making of a single application on behalf of a number of employed persons belonging to the same unpaid group as well as separate applications made by individual workmen it was unnecessary to refer to the persons employed in the unpaid group while providing for appeals against directions made under S. 15(3). On the other hand, if the Legislature had intended that the right to prefer an appeal should accrue to the employer only if Rs. 300/- or more are directed to be paid to each individual employee it would have used appropriate additional words in cl. (a). Therefore the argument based upon the use of the words "unpaid group" in cl. (b) is not of any assistance in construing cl. (a)8. We are also inclined to think that it could not have been the intention of the Legislature to confer on the employer the right to prefer an appeal only if Rs. 300/- or more are ordered to be paid to each one of the applicants. It is true that the policy of the Act is to provide for speedy remedy to the employees in respect of unauthorised deductions made by the employer or in respect of delayed wages; and with that object the Act provides for the appointment of the authority and prescribes the summary procedure for the decision of the claims; but it seems very unlikely that whereas an appeal by the employee has been permitted by cl. (b) whenever the amount in dispute happens to be Rs. 50/- or more in respect of an individual applicant or in respect of the unpaid group the Legislature could have intended that the employer should have no right of appeal against a direction made on a single consolidated application even though the total liability flowing from the said direction may exceed the specified amount of Rs. 300 by several thousands. In the present case the amount directed to be paid is more than Rs. 22,000 but it has been held that since each one of the employees is not ordered to be paid Rs. 300 or more there is no right of appeal. On general considerations, therefore, the conclusion which we have reached on a fair and reasonable construction of cl. (a) appears to be well-founded11. Incidentally, if one or more employees in the same unpaid group are paid an amount exceeding Rs. 300 and the rest are paid less than Rs. 300 on the alternative constructions, the employer would be entitled to make an appeal only in respect of a workman to whom more than Rs. 300 is ordered to be paid and not against the others though the total amount directed to be paid to them may exceed by far the amount of Rs. 300. In such a case, if the appeal preferred by the employer in respect of the amount ordered to be paid to some of the workmen succeeds that would leave outstanding two conflicting decisions, with the result that a large number of employees in the same unpaid group may get the amount under the direction of the authority while those who were awarded more than Rs. 300 by the authority would get a smaller amount under the decision of the appellant authority. We are referring to this anomalous aspect of the matter only for the purpose of showing that whether the words used in the relevant clause are clear and unambiguous considerations of a possible hypothetical anomaly cannot affect its plain meaning. That is why we prefer to leave anomalies on both sides out of account and confine ourselves to the construction of the words used in S. 17(1) (a). If the said words had been reasonably capable of two constructions it would have been relevant to consider which of the two constructions would avoid any possible anomalies. We would, therefore hold that the appellate authority was in error in dismissing the appeal preferred before it by the appellant on the ground that it was incompetent under S.17 (1) (a).
|
State Of Gujarat And Anr Vs. Maharaj Shri Amarshinhji Himatsinhji | the existence of which can lead to the initiation of such inquiry is absent here. Section 37( 1) of the Code contains the well-known declaratory provision where under all public roads, lanes and paths, the bridges, ditches, dikes, beds of the sea, harbours and creeks below high-water-mark, and of rivers, streams, nallas, lakes and tanks etc. and all lands wherever situated, which are not the property of individuals, are declared to be, with all rights in or over the same, or appertaining thereto, the property of the Crown; then follows sub-s. (2) which is material and it runs thus: 37(2) Where any property or any right in or over any property is claimed by or on behalf of the Crown or by any person as against the Crown, it shall be lawful for the Collector or a survey officer, after formal inquiry of which due notice has been given, to pass an order deciding the claim. 5. Under sub-s. (3), the decision of the Collector under sub-s. (2) is rendered final subject to the result of a suit that is required to be instituted in a Civil Court within one year of the said decision. on a reading of sub-s. (2), which we have quoted above, it will appear clear that laying a claim to a property or any right in or over the property either by the State against an individual or by the individual , against the State is a condition precedent to the Collectors power to hold an inquiry contemplated by that provision. In other words, before the Collector can initiate an inquiry under that provision, either the State or the individual must put forward a claim to a property or any right in or over the property and it is such claim that is to be inquired into by the Collector whose decision, subject to a civil suit filed within one year, is rendered final. The question in the instant case is whether the respondent by making the two applications, one dated October 11, 1968 to the Collector of Sabarkantha and the other dated October 4, 1971, to the Mamlatdar, Taluka Idar, could be said to have put forward or laid a claim to a right to excavate gravel and stone a particular mineral product-so as to afford an occasion for the Collector to initiate the inquiry. The material on record clearly shows that the respondent could not be said to have done so. Admittedly, by his previous order dated November 24, 1959, the Mamlatdar of Talukadar, had declared that the respondent had been granted all the rights, particularly the right to quarry and remove gravel and Stones, in Isarwada and Kapoda villages in the year 1947 by the Idar Stale and that thereafter in the years 1952 and 1953 the Jagirdar had taken the produce of stone and that, therefore, t he Government could not stop him from taking out gravel and stones but that the rights to excavating mica had been retained by the State; further, pursuant to this order the appropriate entry had been made in the relevant village records (Form No. 6) of village Kapoda on June 18, 1963, recognising the respondents right to, take out gravel and stones, which entry was verified and confirmed on March 30, 1965, it was in this situation that the respondent made the aforesaid two applications, one to the Collector, Sabarkantha and the other to the Mamladar Taluka Idar, whereby relying upon the previous order of the Mamlatdar dated November 24, 1959, he requested that appropriate entries pertaining to his right to gravel and stones should be similarly made in respect of village Isarwada. It is thus clear that by these two applications the respondent had not put forward any claim as such to excavating gravel and stones for the first time but, had merely requested the making of appropriate entry with regard to his said right which had already been recognised by the State Government previously. That being the position, there was no occasion for the Collector to initiate the inquiry under s. 37( 2) of the Code-in fact, he had no jurisdiction to do so, the condition precedent not being satisfied.Moreover, having regard to the statement made by counsel for the respondent before us it would be unfair to subject the respondent to the further inquiry under s. 37(2) of the Code. We may state that Counsel for- the respondent categorically stated before the Court that his client was confining his right to excavating only one type of mineral product, namely, gravel and stones, and that too from only two villages, namely, Kapoda and Isarwada comprised in his Jagir, in regard to which the Mamlatdars order dated November 24, 1959, was quite clear and, therefore, he urged that the further inquiry under s. 37(2) of the Code into that very right was misconceived and uncalled for. We find considerable force in this contention. Besides, while determining the proprietary nature of the grant under s. 2(4)(1) of the Act the competent authority had, on evidence led be fore it, alluded among others to the respondents right to excavate and sell gravel and stones and enjoyment thereof by the respondent. In these circumstances it would be fair and proper that the respondent is not subjected to a further inquiry under s. 37(2) of the Code so far as his right to excavating gravel and stones from the two villages of Kapoda and Isarwada is concerned. If and when he prefers a claim to this particular mineral productfrom other villages comprised in his grant or to the other mines or mineral products in all the villages including Isarwada and Kapodaan inquiry into such claim under s. 37(2) could be held, but even the decision at such inquiry would be subject to adjudication by a Civil Court in appropriate proceedings, for the final pronouncement on such rights must, as is clear from the scheme , of the Bombay Land Revenue Code, always rest with the Civil Court. 6. | 0[ds]Dealing with the first question which is of a general character, it is clear that the answer thereto depends upon the true scope and ambit of the inquiry under s. 2 (4) (i) of the Act and to determine the same it will be necessary to consider the scheme and object of the Act and . in particular the purpose of the said inquiry. The enactment as its preamble will show, has been put on the Statute Book with a view to abolishing Jagirs of various kinds in the merged territories and merged areas in the State of Bombay and to provide for matters consequential and incidental thereto. Section 2 contains the definitions of various expressions some of which are material. Section 2(vi) defines the expression jagir as meaning the grant by or recognition as a grant by, the ruling authority for the time being before the merger of a village, whether such grant is of the soil or an assignment of land revenue or both; there is also an inclusive part of definition with which we are not concerned. Section 2(vii) defines jagirdar as meaning a holder of a jagir village and includes his co-sharer. Section 2(xv) defines nonproprietary Jagir as meaning a jagir which consists of a right in the jagirdar to appropriate as incident of the jagir, land revenue or rent due to Government from persons holding land in a jagir village, but which does not consist of any right or interest in the soil. Section 2(xviii) defines proprietary jagir as meaning a jagir in respect of which the jagirdar under the terms of a grant or agreement or by custom or usage is entitled to any rights or interest in the soil. Section 2(4), though it forms part of a definition section, contains a substantive provision which is material for our purposes and it runs) If any question arises, -(i) whether a jagir is proprietary or non- proprietary,(ii) whether any land is Ghatked or Jiwai, orany person is a permanent holder, the State Government shall decide the question and such decision shall be final:Provided that the State Government may authorise any officer to decide questions arising under any of the sub clauses(i), (ii) and (iii) and subject to an appeal to the State Government, his decision shall be final?Section 3, which contains the main provision dealing with abolition of jagirs, provides that notwithstanding anything contained in any usage, grant, sanad, order, agreement or any law for the time being in force, on and from the appointed date (which under S. 2 (1) (i) is a date on which the Act comes into force, which is August 1, 1954), all jagirs shall be deemed to have been abolished and save as expressly provided by or under the provisions of this Act, the right of a jagirdar to recover rent or assessment of land or to levy or recover any kind of tax, cess, fee, charge or any hak and the right of reversion or lapse if any, vested in a jagirdar, and all other rights of a jagirdar or of any person legally subsisting on the said date-, in respect of a jagir village as incidents of jagir shall be deemed to have been extinguished. As a consequence of the, abolition of jagirs under s. 3 all Jagir villages became unalienated villages and, therefore, under s. 4 it has been provided t hat all Jagir villages shall be liable to the payment of land revenue in accordance with the provisions of the Code and the Rules made thereunder and the provisions of the Code and the Rules relating to unalienated land shall apply to such villages. Sections 5 and 6 make provision as to what persons, upon abolition of jagirs and conversion of jagir land into unalienated land would be occupants, who shall be primarily liable to the State Government for payment of land revenue. Section 8 declares that all public roads, lands, paths, bridges, titches, dikes, and fences, on or besides the same, the bed of the sea and of harbours, creeks below high water mark, and of rivers, streams, nalaps lakes, wells and tanks, and all canals and water courses etc, situated in jagir village shall vest in the State Government and shall be deemed to be the property of the State Government and all rights held by such jagirdars in such property shall be deemed to have been extinguished. Section 10 contains an express saving provision relating to rights to mines and mineral products and it provides that nothing in this Act or any other law for the time being in force, shall be deemed to affect the rights of any jagirdar subsisting on the appointed date to mines or mineral products in a jagir village granted or recognised under any contract., grant or law for the time being in force or by custom or usage. Section 11 ( 1 ) provides for the quantum of compensation payable to a non- proprietary jagirdar on account of abolition of his jagir and extinguishment of his rights, while s. 11(2) makes similar provision for quantum of compensation to a proprietary jagirdar on account of the abolition of his jagir and extinguishment of his rights. Sections 13 and 14 provide for methods of awarding compensations to jagirdars by the Collector and against the awards of the Collector under either of these provisions a appeal has been provided at the instance of the aggrieved party to the Revenue Tribunal under s.16. Section 17 provides the procedure for disposal of appeals by the Revenue Tribunal while s. 18 prescribes a period of limitation for preferring such appeals and s. 20 gives finality to the award made by the Collector subject to appeal to the Revenue Tribunal. The rest of the sections are (if formal character and not material for our purposes.The aforesaid survey of the material provisions of the Act will bring out two or three aspects very clearly. In the first place the, preamble and s. 3 of the Act clearly show that the object of the enactment is to abolish Jagirs of all kinds in the merged territories and merged areas in the State of Bombay and to convert all Jagir villages into unalienated villages liable to the payment of land revenue in accordance with the provisions of the Bombay Land Revenue Code. Secondly, compensation is made payable under S. 11 of the Act to Jagirdars whose Jagirs and other incidental rights have been extinguished but it will be pertinent to note that no provision has been made for payment of compensation in respect of rights to mines and mineral products in a Jagir village, obviously because if by the grant in question the Jagirdar has not been given any rights to mines and mineral products no compensation would be payable and if there be a grant of mines and mineral products the same have been saved to the Jagirdar under S. 10 of the Act. Thirdly, the quantum of compensation payable for abolition of Jagir and extinguishment of his other rights depends upon what kind of Jagir has been abolished, whether it is proprietary or non- proprietary; in other words it is clear that the inquiry into the nature of the Jagir under s.2 (4) (i) is for the purpose of determining the quantum of compensation payable to a Jagirdar inasmuch as in the case of. a non-proprietary Jagir the Jagirdar is entitled to compensation at the rate of three times the amount of land revenue received by or due to him as an incident of Jagir during the five years immediately before the appointed date under S. 11 (1), while in the case of a proprietary Jagir in respect of land held by a permanent holder the Jagirdar is entitled to compensation equivalent to three multiples of the assessment fixed for such land; S. 11(3) provides for compensation and computation thereof to a Jagirdar having any right or interest in any property referred to in S. 8. In such an inquiry ordinarily no determination of any rights of the Jagirdar to mines or mineral products in a Jagir village will be undertaken for no compensation is payable in respect of any rights to mines and mineral products in a Jagir village. There is yet one more aspect emerging from the definition of the expression proprietary jagir which leads to the same inference. Proprietary jagir has been defined in S. 2(xviii) to mean a jagir in respect of which the Jagirdar under the terms of a grant or agreement or by custom or usage is entitled to any rights or interest in the soil; in other words, the competent authority holding an inquiry wide r s. 2(4) (i) can come to the conclusion that a particular Jagir is proprietary if it finds that the Jagirdar under the terms of a grant or agreement is entitled to some rights or interest in the soil other than mines or mineral products. These aspects bring out true scope and ambit of the inquiry under sec. 2(4)(i) and clearly show that the determination of the question whether a Jagir is proprietary or nonproprietary does not necessarily involve the determination of the question whether the Jagirdar had any rights to mines and mineral products on the appointed date. it is true that prima facie the owner of the surface of the land would be entitled to everything beneath the land and ordinarily mines and mineral products would pass with the right to the surface but this would be so in the absence of any reservations made in the grant; if there be reservations or qualifications in regard to mines or mineral products, in the grant, then these would not pass. In this case also notwithstanding the alleged unqualified grant in favour of the respondent the Mamladars order dated November 24, 1959, on which the respondent strongly relies, has held that the rights to excavate mica were retained by the State and not granted to the respondent, though the material or basis on which it is so held is not available on the record. It is, therefore, not possible to accept the contention of learned counsel for the respondents that a determination under s. 2 (4) (i) of the Act to the effect that a particular Jagir is a proprietary one necessarily implies that the grantee is entitled to mines and mineral products in the villages comprised in the grant, especially , when having regard to the definition given in section 2(xviii) a Jagir could be proprietary without a right to mines and mineral products. In other words, our answer to the general question raised above would be that even after the competent authority has declared a particular Jagir to be a proprietary one under s. 2(4) (i) of the Act, a further inquiry under s. 37(2) of the Bombay Land Revenue Code into the question whether a Jagirdar had any subsisting rights to mines and mineral products in the Jagir village s on the appointed date would be competent unless the grant of a right to mines and mineral products , or the actual enjoyment thereof in keeping with the grant happens to , be the basis of the, determination under s. 2 (4) (1 ) of the Act.Turning to the other specific question raised by counsel for the respondent before us we are clearly of the view that in the facts and circumstances of the case the inquiry initiated by the Collector under s. 37(4) of the Bombay Land Revenue Code w ill have to be regarded as incompetent, misconceived and uncalled for. The main valid objection to the said inquiry is that the condition precedent the existence of which can lead to the initiation of such inquiry is absent here. Section 37( 1) of the Code contains the well-known declaratory provision where under all public roads, lanes and paths, the bridges, ditches, dikes, beds of the sea, harbours and creeks below high-water-mark, and of rivers, streams, nallas, lakes and tanks etc. and all lands wherever situated, which are not the property of individuals, are declared to be, with all rights in or over the same, or appertaining thereto, the property of the Crown; then follows sub-s. (2) which is material and it runs thus:37(2) Where any property or any right in or over any property is claimed by or on behalf of the Crown or by any person as against the Crown, it shall be lawful for the Collector or a survey officer, after formal inquiry of which due notice has been given, to pass an order deciding the claimUnder sub-s. (3), the decision of the Collector under sub-s. (2) is rendered final subject to the result of a suit that is required to be instituted in a Civil Court within one year of the said decision. on a reading of sub-s. (2), which we have quoted above, it will appear clear that laying a claim to a property or any right in or over the property either by the State against an individual or by the individual , against the State is a condition precedent to the Collectors power to hold an inquiry contemplated by that provision. In other words, before the Collector can initiate an inquiry under that provision, either the State or the individual must put forward a claim to a property or any right in or over the property and it is such claim that is to be inquired into by the Collector whose decision, subject to a civil suit filed within one year, is rendered final. The question in the instant case is whether the respondent by making the two applications, one dated October 11, 1968 to the Collector of Sabarkantha and the other dated October 4, 1971, to the Mamlatdar, Taluka Idar, could be said to have put forward or laid a claim to a right to excavate gravel and stone a particular mineral product-so as to afford an occasion for the Collector to initiate the inquiry. The material on record clearly shows that the respondent could not be said to have done so. Admittedly, by his previous order dated November 24, 1959, the Mamlatdar of Talukadar, had declared that the respondent had been granted all the rights, particularly the right to quarry and remove gravel and Stones, in Isarwada and Kapoda villages in the year 1947 by the Idar Stale and that thereafter in the years 1952 and 1953 the Jagirdar had taken the produce of stone and that, therefore, t he Government could not stop him from taking out gravel and stones but that the rights to excavating mica had been retained by the State; further, pursuant to this order the appropriate entry had been made in the relevant village records (Form No. 6) of village Kapoda on June 18, 1963, recognising the respondents right to, take out gravel and stones, which entry was verified and confirmed on March 30, 1965, it was in this situation that the respondent made the aforesaid two applications, one to the Collector, Sabarkantha and the other to the Mamladar Taluka Idar, whereby relying upon the previous order of the Mamlatdar dated November 24, 1959, he requested that appropriate entries pertaining to his right to gravel and stones should be similarly made in respect of village Isarwada. It is thus clear that by these two applications the respondent had not put forward any claim as such to excavating gravel and stones for the first time but, had merely requested the making of appropriate entry with regard to his said right which had already been recognised by the State Government previously. That being the position, there was no occasion for the Collector to initiate the inquiry under s. 37( 2) of the Code-in fact, he had no jurisdiction to do so, the condition precedent not being satisfied.Moreover, having regard to the statement made by counsel for the respondent before us it would be unfair to subject the respondent to the further inquiry under s. 37(2) of the Code. We may state that Counsel for- the respondent categorically stated before the Court that his client was confining his right to excavating only one type of mineral product, namely, gravel and stones, and that too from only two villages, namely, Kapoda and Isarwada comprised in his Jagir, in regard to which the Mamlatdars order dated November 24, 1959, was quite clear and, therefore, he urged that the further inquiry under s. 37(2) of the Code into that very right was misconceived and uncalled for. We find considerable force in this contention. Besides, while determining the proprietary nature of the grant under s. 2(4)(1) of the Act the competent authority had, on evidence led be fore it, alluded among others to the respondents right to excavate and sell gravel and stones and enjoyment thereof by the respondent. In these circumstances it would be fair and proper that the respondent is not subjected to a further inquiry under s. 37(2) of the Code so far as his right to excavating gravel and stones from the two villages of Kapoda and Isarwada is concerned. If and when he prefers a claim to this particular mineral productfrom other villages comprised in his grant or to the other mines or mineral products in all the villages including Isarwada and Kapodaan inquiry into such claim under s. 37(2) could be held, but even the decision at such inquiry would be subject to adjudication by a Civil Court in appropriate proceedings, for the final pronouncement on such rights must, as is clear from the scheme , of the Bombay Land Revenue Code, always rest with the Civil Court. | 0 | 5,591 | 3,271 | ### Instruction:
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the existence of which can lead to the initiation of such inquiry is absent here. Section 37( 1) of the Code contains the well-known declaratory provision where under all public roads, lanes and paths, the bridges, ditches, dikes, beds of the sea, harbours and creeks below high-water-mark, and of rivers, streams, nallas, lakes and tanks etc. and all lands wherever situated, which are not the property of individuals, are declared to be, with all rights in or over the same, or appertaining thereto, the property of the Crown; then follows sub-s. (2) which is material and it runs thus: 37(2) Where any property or any right in or over any property is claimed by or on behalf of the Crown or by any person as against the Crown, it shall be lawful for the Collector or a survey officer, after formal inquiry of which due notice has been given, to pass an order deciding the claim. 5. Under sub-s. (3), the decision of the Collector under sub-s. (2) is rendered final subject to the result of a suit that is required to be instituted in a Civil Court within one year of the said decision. on a reading of sub-s. (2), which we have quoted above, it will appear clear that laying a claim to a property or any right in or over the property either by the State against an individual or by the individual , against the State is a condition precedent to the Collectors power to hold an inquiry contemplated by that provision. In other words, before the Collector can initiate an inquiry under that provision, either the State or the individual must put forward a claim to a property or any right in or over the property and it is such claim that is to be inquired into by the Collector whose decision, subject to a civil suit filed within one year, is rendered final. The question in the instant case is whether the respondent by making the two applications, one dated October 11, 1968 to the Collector of Sabarkantha and the other dated October 4, 1971, to the Mamlatdar, Taluka Idar, could be said to have put forward or laid a claim to a right to excavate gravel and stone a particular mineral product-so as to afford an occasion for the Collector to initiate the inquiry. The material on record clearly shows that the respondent could not be said to have done so. Admittedly, by his previous order dated November 24, 1959, the Mamlatdar of Talukadar, had declared that the respondent had been granted all the rights, particularly the right to quarry and remove gravel and Stones, in Isarwada and Kapoda villages in the year 1947 by the Idar Stale and that thereafter in the years 1952 and 1953 the Jagirdar had taken the produce of stone and that, therefore, t he Government could not stop him from taking out gravel and stones but that the rights to excavating mica had been retained by the State; further, pursuant to this order the appropriate entry had been made in the relevant village records (Form No. 6) of village Kapoda on June 18, 1963, recognising the respondents right to, take out gravel and stones, which entry was verified and confirmed on March 30, 1965, it was in this situation that the respondent made the aforesaid two applications, one to the Collector, Sabarkantha and the other to the Mamladar Taluka Idar, whereby relying upon the previous order of the Mamlatdar dated November 24, 1959, he requested that appropriate entries pertaining to his right to gravel and stones should be similarly made in respect of village Isarwada. It is thus clear that by these two applications the respondent had not put forward any claim as such to excavating gravel and stones for the first time but, had merely requested the making of appropriate entry with regard to his said right which had already been recognised by the State Government previously. That being the position, there was no occasion for the Collector to initiate the inquiry under s. 37( 2) of the Code-in fact, he had no jurisdiction to do so, the condition precedent not being satisfied.Moreover, having regard to the statement made by counsel for the respondent before us it would be unfair to subject the respondent to the further inquiry under s. 37(2) of the Code. We may state that Counsel for- the respondent categorically stated before the Court that his client was confining his right to excavating only one type of mineral product, namely, gravel and stones, and that too from only two villages, namely, Kapoda and Isarwada comprised in his Jagir, in regard to which the Mamlatdars order dated November 24, 1959, was quite clear and, therefore, he urged that the further inquiry under s. 37(2) of the Code into that very right was misconceived and uncalled for. We find considerable force in this contention. Besides, while determining the proprietary nature of the grant under s. 2(4)(1) of the Act the competent authority had, on evidence led be fore it, alluded among others to the respondents right to excavate and sell gravel and stones and enjoyment thereof by the respondent. In these circumstances it would be fair and proper that the respondent is not subjected to a further inquiry under s. 37(2) of the Code so far as his right to excavating gravel and stones from the two villages of Kapoda and Isarwada is concerned. If and when he prefers a claim to this particular mineral productfrom other villages comprised in his grant or to the other mines or mineral products in all the villages including Isarwada and Kapodaan inquiry into such claim under s. 37(2) could be held, but even the decision at such inquiry would be subject to adjudication by a Civil Court in appropriate proceedings, for the final pronouncement on such rights must, as is clear from the scheme , of the Bombay Land Revenue Code, always rest with the Civil Court. 6.
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that the condition precedent the existence of which can lead to the initiation of such inquiry is absent here. Section 37( 1) of the Code contains the well-known declaratory provision where under all public roads, lanes and paths, the bridges, ditches, dikes, beds of the sea, harbours and creeks below high-water-mark, and of rivers, streams, nallas, lakes and tanks etc. and all lands wherever situated, which are not the property of individuals, are declared to be, with all rights in or over the same, or appertaining thereto, the property of the Crown; then follows sub-s. (2) which is material and it runs thus:37(2) Where any property or any right in or over any property is claimed by or on behalf of the Crown or by any person as against the Crown, it shall be lawful for the Collector or a survey officer, after formal inquiry of which due notice has been given, to pass an order deciding the claimUnder sub-s. (3), the decision of the Collector under sub-s. (2) is rendered final subject to the result of a suit that is required to be instituted in a Civil Court within one year of the said decision. on a reading of sub-s. (2), which we have quoted above, it will appear clear that laying a claim to a property or any right in or over the property either by the State against an individual or by the individual , against the State is a condition precedent to the Collectors power to hold an inquiry contemplated by that provision. In other words, before the Collector can initiate an inquiry under that provision, either the State or the individual must put forward a claim to a property or any right in or over the property and it is such claim that is to be inquired into by the Collector whose decision, subject to a civil suit filed within one year, is rendered final. The question in the instant case is whether the respondent by making the two applications, one dated October 11, 1968 to the Collector of Sabarkantha and the other dated October 4, 1971, to the Mamlatdar, Taluka Idar, could be said to have put forward or laid a claim to a right to excavate gravel and stone a particular mineral product-so as to afford an occasion for the Collector to initiate the inquiry. The material on record clearly shows that the respondent could not be said to have done so. Admittedly, by his previous order dated November 24, 1959, the Mamlatdar of Talukadar, had declared that the respondent had been granted all the rights, particularly the right to quarry and remove gravel and Stones, in Isarwada and Kapoda villages in the year 1947 by the Idar Stale and that thereafter in the years 1952 and 1953 the Jagirdar had taken the produce of stone and that, therefore, t he Government could not stop him from taking out gravel and stones but that the rights to excavating mica had been retained by the State; further, pursuant to this order the appropriate entry had been made in the relevant village records (Form No. 6) of village Kapoda on June 18, 1963, recognising the respondents right to, take out gravel and stones, which entry was verified and confirmed on March 30, 1965, it was in this situation that the respondent made the aforesaid two applications, one to the Collector, Sabarkantha and the other to the Mamladar Taluka Idar, whereby relying upon the previous order of the Mamlatdar dated November 24, 1959, he requested that appropriate entries pertaining to his right to gravel and stones should be similarly made in respect of village Isarwada. It is thus clear that by these two applications the respondent had not put forward any claim as such to excavating gravel and stones for the first time but, had merely requested the making of appropriate entry with regard to his said right which had already been recognised by the State Government previously. That being the position, there was no occasion for the Collector to initiate the inquiry under s. 37( 2) of the Code-in fact, he had no jurisdiction to do so, the condition precedent not being satisfied.Moreover, having regard to the statement made by counsel for the respondent before us it would be unfair to subject the respondent to the further inquiry under s. 37(2) of the Code. We may state that Counsel for- the respondent categorically stated before the Court that his client was confining his right to excavating only one type of mineral product, namely, gravel and stones, and that too from only two villages, namely, Kapoda and Isarwada comprised in his Jagir, in regard to which the Mamlatdars order dated November 24, 1959, was quite clear and, therefore, he urged that the further inquiry under s. 37(2) of the Code into that very right was misconceived and uncalled for. We find considerable force in this contention. Besides, while determining the proprietary nature of the grant under s. 2(4)(1) of the Act the competent authority had, on evidence led be fore it, alluded among others to the respondents right to excavate and sell gravel and stones and enjoyment thereof by the respondent. In these circumstances it would be fair and proper that the respondent is not subjected to a further inquiry under s. 37(2) of the Code so far as his right to excavating gravel and stones from the two villages of Kapoda and Isarwada is concerned. If and when he prefers a claim to this particular mineral productfrom other villages comprised in his grant or to the other mines or mineral products in all the villages including Isarwada and Kapodaan inquiry into such claim under s. 37(2) could be held, but even the decision at such inquiry would be subject to adjudication by a Civil Court in appropriate proceedings, for the final pronouncement on such rights must, as is clear from the scheme , of the Bombay Land Revenue Code, always rest with the Civil Court.
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Shashi Kumar Banerjee & Ors Vs. Subodh Kumar Banerjee Since Deceased & After Him His L.Rs | All that can be said after a review of all the signatures from 1943 is that as the testators age increased his writing became more shaky, though as we have said before, there are examples of shaky signatures before 1946 and also examples of not so shaky signatures after 1945.21. This conclusion is in our opinion borne out by the various signatures on the will and the various writings therein which were made to fill in the blanks after the main body of the will had been written in January to March 1943. The full signature at the foot of the will does show some tremor but there are a number of signatures on the margin of the will which are not full and some of them do not show much tremor though some do. Further according to the evidence of the attesting witnesses, the plan attached to the will was also signed at the same time as the will and the expert admitted in his evidence that the signature of the testator on the plan showed superior control and was not like the signature at the bottom of the will which according to the expert showed failing pen control. If both these signatures were made on the same day-and there is no reason why they should not have been, whether in 1943 or late in 1946-, it is remarkable that the one on the will, according to the expert, shows failing pen control while the one on the plan does not disclose any tremor. The evidence of the expert therefore in these circumstances is not conclusive and cannot prove that the signature at the bottom of the will could not possibly have been made on August 29,1943 on which date it purports to have been made. Besides it must not be forgotten that the will was executed in August 1943 soon after the testator had recovered from a serious illness and if there is some tremor here and there in his writing on that day, his illness may partly explain it. In this connection however our attention was drawn to some signatures made on September 1, 1943 only three days later which do not show much tremor: (see Ex. C/15). As we see the signature of September 1, 1943, we find that it is not quite so firm as some other signatures made later in the month of September. On the whole therefore we are not prepared to accept that the signature at the bottom of the will could not possibly have been made in August 1943 and must have been made late in 1946. We do not consider in the circumstances of this case that the evidence of the expert is conclusive and can falsify the evidence of the attesting witnesses and also the circumstances which go to show that this will must have been signed in 1943 as it purports to be. Besides it is necessary to observe that experts evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case all the probabilities are against the experts opinion and the direct testimony of the two attesting witnesses which we accept is wholly in consistent with it.22. Again it is not in dispute that the envelope containing the will bears the signature of the testator and the endorsement on it to the effect "Soshi, preserve this my will." According to Soshi, this closed envelope was given to him towards the end of December 1945 or beginning of January 1946. It would be safe to presume that both the signature and the endorsement on it were made at the same time. But if one looks at the endorsement one finds some tremor or deviation in the words "Soshi" and "preserve" while there is very little tremor or deviation in the signature of the testator. This shows that sometime even in the writing written at the same time tremor appeared in some words, even though other words did not have tremor. It may be that towards the latter part of 1946 and in 1947 the tremor became rather pronounced and was usually present all the time.23. Finally we may point out that the expert admitted in his evidence that it was only by a chemical test that it could be definitely stated whether a particular writing was of a particular year or period. He also admitted that he applied no chemical tests in this case. So his opinion cannot on his own showing have that value which it might have had if he had applied a chemical test. Besides we may add that Osborn on "Questioned Documents" at p. 464 says even with respect to chemical tests that "the chemical tests to determine age also, as a rule, are a mere excuse to make a guess and furnish no reliable data upon which a definite opinion can be based". In these circumstances the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no suspicious circumstances.24. On the whole therefore it seems to us that it has not been established by the evidence of the expert that the signature at the bottom of the will could not be made on August 29, 1943 as deposed to by the attesting witnesses. In the circumstances of this case, the view taken by the District Judge of the evidence of the expert, namely, "it would be indeed dangerous to base a decision upon such inconclusive data" appears to us to be correct. We hold therefore on a review of the entire evidence that due execution and attestation of the will in dispute has been proved as alleged by the propounders and so the appellants are entitled to probate with a copy of the will attached. | 1[ds]4. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 Supp (1) SCR 426 : (AIR 1959 SC 443 ) and Rani Purniama Devi v. Khagendra Narayan Dev, (1962) 3 SCR 195 : AIR 1962 SC 567 ).The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testators mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testators mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations.Itis in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed andevidence is that some time after the will had been executed it was handed over by the testator to his son Soshi. The will was in a closed envelope and on the top of that the testator had written "Soshi preserve this my will" and had signed that. It is not in dispute that the writing and the signature on this envelope are also in the hand of the testator. Soshi kept this envelope with him and after the death of the testator, he and his brother Sunil went with it to Birendra Nath Lahiri, an advocate. When the advocate saw the envelope it was closed. He did not open it. He advised them to give notice to all the heirs of the testator and fix a date and place for the opening of the envelope. They therefore asked him to issue the notice and gave him the names of all the heirs. He then issued a notice to all the heirs including the caveators respondents telling them that the last will and testament of the testator had been handed over to him, that he would open it on May 8, 1947 between 7 p.m. and 7-30 p.m. and requested them to be present at his place either in person or through some agent in order to witness the opening of the envelope. In reply to this notice, two of the heirs, namely, Sukumar Banerjee and Provat Kumar sent replies; but they did not attend at the time and place fixed by Lahiri. The only persons to attend were the three appellants and one Kartick Mukherjee, who is a son-in-law of the testator and husband of one of the daughters named Nihar Bala. Thereafter the envelope was opened and it is no ones case that at that time the will was not in the same condition in which it was when it was filed in court along with the probate application. Therefore when the will was opened on May 8, 1947, it bore the signature of the testator as well as the attestation of the attesting witnesses. This again is a very important circumstance in favour of the genuineness and due execution and attestation of the will and is perhaps the reason why the respondents did not come forward with a positive case as to the will having been attested after the death of theexperts evidence further is that the writing the body of the will is without tremor while the signature at the bottom of it and initials in the margin on the corrections showed tremor and therefore the will must have been signed after 1945 and not in August 1943, as it purports to be. We shall deal with the evidence of the expert later; but it is pertinent to point out here that we cannot understand when the testator admittedly signed the will even according to the respondents, though sometime in 1946 why he should have antedated it to August 1943. It is in this connection that the finding of the District Judge that the testator was possessed of full testamentary capacity almost upto the moment of his death, certainly upto March 1947, which does not appear to have been challenged before the High Court, assumes great importance. If the testator had not signed this will in 1943 as it purports to be and if he was possessed of full testamentary capacity in 1946 as he must in our opinion be held to be and was in fact signing this will in 1946, we fail to see why he should not put on it the date in 1946, on which according to the respondents he actually signed the will and get it attested on that date. The whole argument therefore based on the theory of tremor put forward by the handwriting expert appears to us to be of no help to the respondents; for the testator having retained full mental capacity and power of judgment till almost the last moment of his life, it does not stand to reason that he would antedate the will if he really signed it late in 1946. Once therefore it is admitted that the signature on the will is that of the testator, the theory that it is antedated by him can be accepted only if the experts evidence is so convincing that the extreme improbability attaching to the said theory can be safely rejected.8. Turning now to the intrinsic evidence in the will itself, to which reference has been made on behalf of the appellants, we find that there are as many as six circumstances which go to show that the date on which the will purports to have been executed, namely, August 29, 1943, must be the correct date and that a will containing the provisions which this will contains could not have been executed late in 1946. The first circumstance to which reference may be made is that it makes provision for the wife of the testator and provides for consultation with her in case there is any dispute between the three executors. Now it is not in dispute that the wife of the testator died in 1945; as such it would certainly be strange - if not impossible -to find a provision in the will for the wife and also a provision to the effect that the wife should be consulted whenever there was a dispute between the executors appointed under the will.9. The next circumstance is that while providing for a monthly allowance for his daughter Sushila, the testator says that she was living with her sons in her house. It is admitted that Sushila came to live with her father in 1945, shortly before the death of her mother and stayed on till the testator died. In such circumstances it is extremely unlikely that the testator who had made corrections in the will before he signed it would not correct this part of it.10. The third circumstance which is relied on is with respect to Nihar Bala, a daughter of the testator, to whom a bequest was made in the will and who is the wife of Kartick Mukherjee. The testator said in the will that her husband was a Senior Stock Varifier on a monthly pay of Rs. 300/-. Now it is in evidence that Kartick retired early in 1946 and his wife Nihar Bala asked in January 1947 for a monthly allowance which the testator provided for her. It is said that if this will was signed by the testator late in 1946 he would not say therein that his son- in - law was getting Rs. 300/- per mensem when in fact he had retired.11. The fourth circumstance which is relied on is that the will says that Shivendra, a son of another daughter Rani Devi alias Renuke is preparing for his B. A. examination. Now it is not disputed that Shivendra had passed his B. A. Examination in 1944. Therefore it is said that if this will was signed in 1946 it could not have contained this recital about Shivendra and in consequence it must have been signed in 1943, which it purports to be.12. The fifth circumstance which is relied on is that the will mentions that Sukumars wife was alive for the testator when depriving Sukumar of any share in the property has said that he and his wife have no children and Sukumars income is more than sufficient to maintain him and his wife in ease and comfort. Now there is no dispute that Sukumars wife died in October 1943. It is therefore said that if this will was being signed in 1946, the testator cold not have used words in it to indicate that Sukumars wife was alive; this could only happen if the will was really signed in August 1943.13. Lastly, the will devised premises No. 76 Hazara Road in favour of Sashi, but on January 26, 1946, the testator had given away this property to Bimal. Consequently it is said that if the will was really signed in late 1946, such a bequest could not possibly appear there in.14. These circumstances afford in our opinion intrinsic evidence of the fact that the will must have been signed in August 1943. On that basis all these recitals in the will would be correct andexplanations though technically possible are hardly satisfactory. We are of opinion that it is most unlikely that the testator would not correct these recitals in the will if he was really signing it in 1946 as he did make some corrections and the probabilities therefore indicate that the will was signed in 1943 as it purports to be. Further it was admitted in the High Court that it was not possible for the respondents to explain how all these recitals came to be in the will, they in our opinion clearly support the case of the appellants that the will was written out between January to March 1943 and signed in August 1943. In any case though some of the recitals are of a minor nature, there are two matters which in our opinion could not have appeared in a will signed late in 1946. These two matters are, namely, (1) provision for the wife when she undoubtedly died in 1945, and (2) the disposition of property No. 76 Hazara Road. We cannot accept the argument that these matters might have escaped the attention of the testator when he signed the will late in 1946 for there was nothing wrong with him till late 1946 which would allow such defects to creep into this will. We therefore agree with the contention on behalf of the appellants that these circumstances tend to show that the will must have been signed in August 1943 as it purports tomust, with respect, say that the High Court was not right in first considering the evidence of the expert and holding on its basis that the will could not have been signed in 1943, in a case of this kind where there were practically no suspicious circumstances and where all the circumstances point to the due execution and attestation of the will.It is true that after having considered the evidence of the expert and having said that there was an end of the case of the propounders and the attesting witnesses must also be held to be untruthful once the evidence of the expert was believed, the High Court has gone on to consider the evidence of the attesting witnesses and has said that it was doing so independently of the view expressed by it as to the evidence of thestatement is that he happened to go that day to inspect a house belonging to his fathers debutter estate at Rustomjee Street which is near where the testator used to live. Therefore he went to see the testator because his usual practice was that whenever he was in the locality in which the testator lived and he had time at his disposal he always went round to see him. Similarly the evidence of Sambhunath Munshi was that he went to see the testator in order to hand over Glucose and Horlicks which he was asked to procure for the testator as in those days Glucose and Horlicks were difficult to get. Thus it was by chance that the two attesting witnesses happened to be there when the testator asked them to attest the will. The argument on behalf of the respondents is that if the testator wanted to execute the will he would have sent for these witnesses and it is too much to believe that they happened to be there and the testator took advantage of their presence.It may be that it is more usual for witnesses to be called when a person is intending to execute a will; even so there is nothing impossible in advantage being taken of the accidental presence of witnesses in this connection.Further if these two witnesses were not witnesses of truth they could easily have stated that they were called by the testator and in the circumstances of this case nobody would have been able to disprove that statement. It seems to us clear therefore that the testator took advantage of the accidental presence of these two witnesses whom he knew well from before and asked them to attest the will. Nor do we think there was any such relationship between Shambunath Munshi and Manmathanath Mookerjee or between Shambunath Munshi and Sunil and Sashi as to impel Shambunath to give false evidence as an attestingto Sambhunath the will is said to have been executed at about 3-0 p.m. and it took about 45 minutes for the testator to complete the will by filling up the blank spaces therein and correcting it here and there. Sambhunaths statement also is that he arrived about noon at the house of the testator and shortly thereafter Manmathanath Mookerjee arrived. On the other hand, the evidence of Manmathanath is that he arrived about noon 3-30 p.m. and thereafter the testator brought the will, filled up the blanks and made corrections in it and then the execution and attestation took place. So according to this statement the will must have been executed and attested at about 4-30 p. m. Further, according to Sambhunath Munshi, he stayed at the place for 2 1/2 hours and Manmathanath Mookerjee came only a short time after he arrived. There is no doubt that there are these discrepancies as to time. But we are of opinion that the discrepancies are not so serious as to make us distrust the evidence of the two attesting witnesses. That evidence in substance shows that the will was executed and attested sometime in the afternoon of August 29, 1943. Sambhunath would place it somewhere between 1 p.m. and 3-30 p.m. while Manmathanath places it somewhere between 3 p.m. and 5 p.m. Considering that these witnesses were giving evidence almost 8 or 9 years after the execution of the will, this discrepancy in time is not so serious as to destroy the value of their evidence. In substance, it shows that the execution of the will took place in the afternoon according to both the witnesses; this is not a case where one witness says that execution took place in the morning while the other ways that it took place in the evening, which of course may introduce some infirmity in the evidence.Further so far as Sambhunath Munshi is concerned, he was obviously on good terms with the testator who he had known for some years. All that has been said against him is that he was a tenant of Manmathanath. But he was a tax collector of the Calcutta Corporation and as such we do not think that he would be under the thumb of Manmathanath or his son-in-law simply because he was a tenant in Manmathanaths house. Otherwise there is no reason except for the discrepancies to which we have already referred and which in our opinion do not detract from the substantial truth of his statement, why his evidence should be disregarded. Taking therefore a broad view of the evidence of these two witnesses in the circumstances of this case to which we have already referred, we are of opinion that the evidence is reliable and does prove execution and attestation of the will in dispute.20. This brings us to the evidence of the handwriting expert. In his report, the expert said that the testators pen control in spite of his advanced years was well maintained in 1943 and the specimen of the testators writing in that year showed strength and ease and perfect control over the pen which was scarcely seen in the hand of an old-man of about 92 years. Further the report said that the change in the testators pen control between the years 1943 and 1945 was so slight as to be scarcely noticeable. But in 1946 all of a sudden the pen control gave way and the hand shook and this resulted in deviations in the natural path of the strokes. The report further said that the main body of the will which is said to have been written in 1943 showed strength in pen control and pressure which is found in the specimens of 1943 but the additions and the signature at the bottom of the will as well as in the margin showed that they must have been written late in 1946 after the testator had lost pen control. In his evidence the expert made some changes in his opinion. He said that deterioration in the signature of the testator began from March 1946 and this he said because he had to admit that many signatures of January 1946 did not disclose any tremor. Further though in the report he had said that tremors began suddenly in 1946, in his evidence he admitted that in old-age tremors appeared gradually and increased with passage of time. Further he was cross-examined with respect to certain signatures of the testator of the period before 1946 which showed tremors and also with respect to certain signatures after 1946 which did not show tremors. He had to admit that some of these signatures shown to him did not conform to the pattern, namely, that there was pen control upto March 1946 and thereafter pen control was lost. He however explained these deviations from the pattern by reference to what he called "pen pressure" and "angularities" which according to him were different from loss of pen control. There is however no doubt that there are some signatures of the period upto March 1946 which show tremors and there are some signatures of the period after March 1946 which do not show much tremor. We may in this connection refer to Ex. E-36 and Ex. 23/1 of 1943, Ex. C/21 and Ex. E.53 of 1944 and Ex. E-75 of 1945 which clearly show tremors. Further Ex. C-38 of January 30, 1946 also clearly shows tremor and these are all before March 1946 from which time according to the expert tremor started. On the other hand Ex. E-100 of June 1946 is admitted by the expert himself as showing not much tremor. We must not also forget that the testator was an old-man of about 93 even in 1943 and therefore if sometimes his signatures were not as set as usual, that may be explained partly by his extreme old-age. We agree with the District Judge that no two signatures written by a person in the ordinary course of writing are precisely alike and differences may arise from various factors such as diversity in the makes of the pen, the level of the signatures the space it occupies etc. and therefore it is difficult to generalise and it will indeed be dangerous to base a decision upon such inconclusive data. All that can be said after a review of all the signatures from 1943 is that as the testators age increased his writing became more shaky, though as we have said before, there are examples of shaky signatures before 1946 and also examples of not so shaky signatures after 1945.21. This conclusion is in our opinion borne out by the various signatures on the will and the various writings therein which were made to fill in the blanks after the main body of the will had been written in January to March 1943. The full signature at the foot of the will does show some tremor but there are a number of signatures on the margin of the will which are not full and some of them do not show much tremor though some do. Further according to the evidence of the attesting witnesses, the plan attached to the will was also signed at the same time as the will and the expert admitted in his evidence that the signature of the testator on the plan showed superior control and was not like the signature at the bottom of the will which according to the expert showed failing pen control. If both these signatures were made on the same day-and there is no reason why they should not have been, whether in 1943 or late in 1946-, it is remarkable that the one on the will, according to the expert, shows failing pen control while the one on the plan does not disclose any tremor. The evidence of the expert therefore in these circumstances is not conclusive and cannot prove that the signature at the bottom of the will could not possibly have been made on August 29,1943 on which date it purports to have been made. Besides it must not be forgotten that the will was executed in August 1943 soon after the testator had recovered from a serious illness and if there is some tremor here and there in his writing on that day, his illness may partly explain it. In this connection however our attention was drawn to some signatures made on September 1, 1943 only three days later which do not show much tremor: (see Ex. C/15). As we see the signature of September 1, 1943, we find that it is not quite so firm as some other signatures made later in the month of September. On the whole therefore we are not prepared to accept that the signature at the bottom of the will could not possibly have been made in August 1943 and must have been made late in 1946. We do not consider in the circumstances of this case that the evidence of the expert is conclusive and can falsify the evidence of the attesting witnesses and also the circumstances which go to show that this will must have been signed in 1943 as it purports to be. Besides it is necessary to observe that experts evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case all the probabilities are against the experts opinion and the direct testimony of the two attesting witnesses which we accept is wholly in consistent with it.22. Again it is not in dispute that the envelope containing the will bears the signature of the testator and the endorsement on it to the effect "Soshi, preserve this my will." According to Soshi, this closed envelope was given to him towards the end of December 1945 or beginning of January 1946. It would be safe to presume that both the signature and the endorsement on it were made at the same time. But if one looks at the endorsement one finds some tremor or deviation in the words "Soshi" and "preserve" while there is very little tremor or deviation in the signature of the testator. This shows that sometime even in the writing written at the same time tremor appeared in some words, even though other words did not have tremor. It may be that towards the latter part of 1946 and in 1947 the tremor became rather pronounced and was usually present all the time.23. Finally we may point out that the expert admitted in his evidence that it was only by a chemical test that it could be definitely stated whether a particular writing was of a particular year or period. He also admitted that he applied no chemical tests in this case. So his opinion cannot on his own showing have that value which it might have had if he had applied a chemical test. Besides we may add that Osborn on "Questioned Documents" at p. 464 says even with respect to chemical tests that "the chemical tests to determine age also, as a rule, are a mere excuse to make a guess and furnish no reliable data upon which a definite opinion can be based". In these circumstances the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no suspicious circumstances.24. On the whole therefore it seems to us that it has not been established by the evidence of the expert that the signature at the bottom of the will could not be made on August 29, 1943 as deposed to by the attesting witnesses. In the circumstances of this case, the view taken by the District Judge of the evidence of the expert, namely, "it would be indeed dangerous to base a decision upon such inconclusive data" appears to us to be correct. We hold therefore on a review of the entire evidence that due execution and attestation of the will in dispute has been proved as alleged by the propounders and so the appellants are entitled to probate with a copy of the will attached. | 1 | 7,818 | 4,815 | ### 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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All that can be said after a review of all the signatures from 1943 is that as the testators age increased his writing became more shaky, though as we have said before, there are examples of shaky signatures before 1946 and also examples of not so shaky signatures after 1945.21. This conclusion is in our opinion borne out by the various signatures on the will and the various writings therein which were made to fill in the blanks after the main body of the will had been written in January to March 1943. The full signature at the foot of the will does show some tremor but there are a number of signatures on the margin of the will which are not full and some of them do not show much tremor though some do. Further according to the evidence of the attesting witnesses, the plan attached to the will was also signed at the same time as the will and the expert admitted in his evidence that the signature of the testator on the plan showed superior control and was not like the signature at the bottom of the will which according to the expert showed failing pen control. If both these signatures were made on the same day-and there is no reason why they should not have been, whether in 1943 or late in 1946-, it is remarkable that the one on the will, according to the expert, shows failing pen control while the one on the plan does not disclose any tremor. The evidence of the expert therefore in these circumstances is not conclusive and cannot prove that the signature at the bottom of the will could not possibly have been made on August 29,1943 on which date it purports to have been made. Besides it must not be forgotten that the will was executed in August 1943 soon after the testator had recovered from a serious illness and if there is some tremor here and there in his writing on that day, his illness may partly explain it. In this connection however our attention was drawn to some signatures made on September 1, 1943 only three days later which do not show much tremor: (see Ex. C/15). As we see the signature of September 1, 1943, we find that it is not quite so firm as some other signatures made later in the month of September. On the whole therefore we are not prepared to accept that the signature at the bottom of the will could not possibly have been made in August 1943 and must have been made late in 1946. We do not consider in the circumstances of this case that the evidence of the expert is conclusive and can falsify the evidence of the attesting witnesses and also the circumstances which go to show that this will must have been signed in 1943 as it purports to be. Besides it is necessary to observe that experts evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case all the probabilities are against the experts opinion and the direct testimony of the two attesting witnesses which we accept is wholly in consistent with it.22. Again it is not in dispute that the envelope containing the will bears the signature of the testator and the endorsement on it to the effect "Soshi, preserve this my will." According to Soshi, this closed envelope was given to him towards the end of December 1945 or beginning of January 1946. It would be safe to presume that both the signature and the endorsement on it were made at the same time. But if one looks at the endorsement one finds some tremor or deviation in the words "Soshi" and "preserve" while there is very little tremor or deviation in the signature of the testator. This shows that sometime even in the writing written at the same time tremor appeared in some words, even though other words did not have tremor. It may be that towards the latter part of 1946 and in 1947 the tremor became rather pronounced and was usually present all the time.23. Finally we may point out that the expert admitted in his evidence that it was only by a chemical test that it could be definitely stated whether a particular writing was of a particular year or period. He also admitted that he applied no chemical tests in this case. So his opinion cannot on his own showing have that value which it might have had if he had applied a chemical test. Besides we may add that Osborn on "Questioned Documents" at p. 464 says even with respect to chemical tests that "the chemical tests to determine age also, as a rule, are a mere excuse to make a guess and furnish no reliable data upon which a definite opinion can be based". In these circumstances the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no suspicious circumstances.24. On the whole therefore it seems to us that it has not been established by the evidence of the expert that the signature at the bottom of the will could not be made on August 29, 1943 as deposed to by the attesting witnesses. In the circumstances of this case, the view taken by the District Judge of the evidence of the expert, namely, "it would be indeed dangerous to base a decision upon such inconclusive data" appears to us to be correct. We hold therefore on a review of the entire evidence that due execution and attestation of the will in dispute has been proved as alleged by the propounders and so the appellants are entitled to probate with a copy of the will attached.
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### Explanation:
All that can be said after a review of all the signatures from 1943 is that as the testators age increased his writing became more shaky, though as we have said before, there are examples of shaky signatures before 1946 and also examples of not so shaky signatures after 1945.21. This conclusion is in our opinion borne out by the various signatures on the will and the various writings therein which were made to fill in the blanks after the main body of the will had been written in January to March 1943. The full signature at the foot of the will does show some tremor but there are a number of signatures on the margin of the will which are not full and some of them do not show much tremor though some do. Further according to the evidence of the attesting witnesses, the plan attached to the will was also signed at the same time as the will and the expert admitted in his evidence that the signature of the testator on the plan showed superior control and was not like the signature at the bottom of the will which according to the expert showed failing pen control. If both these signatures were made on the same day-and there is no reason why they should not have been, whether in 1943 or late in 1946-, it is remarkable that the one on the will, according to the expert, shows failing pen control while the one on the plan does not disclose any tremor. The evidence of the expert therefore in these circumstances is not conclusive and cannot prove that the signature at the bottom of the will could not possibly have been made on August 29,1943 on which date it purports to have been made. Besides it must not be forgotten that the will was executed in August 1943 soon after the testator had recovered from a serious illness and if there is some tremor here and there in his writing on that day, his illness may partly explain it. In this connection however our attention was drawn to some signatures made on September 1, 1943 only three days later which do not show much tremor: (see Ex. C/15). As we see the signature of September 1, 1943, we find that it is not quite so firm as some other signatures made later in the month of September. On the whole therefore we are not prepared to accept that the signature at the bottom of the will could not possibly have been made in August 1943 and must have been made late in 1946. We do not consider in the circumstances of this case that the evidence of the expert is conclusive and can falsify the evidence of the attesting witnesses and also the circumstances which go to show that this will must have been signed in 1943 as it purports to be. Besides it is necessary to observe that experts evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case all the probabilities are against the experts opinion and the direct testimony of the two attesting witnesses which we accept is wholly in consistent with it.22. Again it is not in dispute that the envelope containing the will bears the signature of the testator and the endorsement on it to the effect "Soshi, preserve this my will." According to Soshi, this closed envelope was given to him towards the end of December 1945 or beginning of January 1946. It would be safe to presume that both the signature and the endorsement on it were made at the same time. But if one looks at the endorsement one finds some tremor or deviation in the words "Soshi" and "preserve" while there is very little tremor or deviation in the signature of the testator. This shows that sometime even in the writing written at the same time tremor appeared in some words, even though other words did not have tremor. It may be that towards the latter part of 1946 and in 1947 the tremor became rather pronounced and was usually present all the time.23. Finally we may point out that the expert admitted in his evidence that it was only by a chemical test that it could be definitely stated whether a particular writing was of a particular year or period. He also admitted that he applied no chemical tests in this case. So his opinion cannot on his own showing have that value which it might have had if he had applied a chemical test. Besides we may add that Osborn on "Questioned Documents" at p. 464 says even with respect to chemical tests that "the chemical tests to determine age also, as a rule, are a mere excuse to make a guess and furnish no reliable data upon which a definite opinion can be based". In these circumstances the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no suspicious circumstances.24. On the whole therefore it seems to us that it has not been established by the evidence of the expert that the signature at the bottom of the will could not be made on August 29, 1943 as deposed to by the attesting witnesses. In the circumstances of this case, the view taken by the District Judge of the evidence of the expert, namely, "it would be indeed dangerous to base a decision upon such inconclusive data" appears to us to be correct. We hold therefore on a review of the entire evidence that due execution and attestation of the will in dispute has been proved as alleged by the propounders and so the appellants are entitled to probate with a copy of the will attached.
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Punjab Agro Industries Corpn. Ltd Vs. Kewal Singh Dhillon | will not debar the Petitioner from taking such other remedy as may be available under the law." The said decision is challenged in this appeal by special leave, on the following grounds:(a) The order of the High Court is a non speaking order and it upholds the preliminary objection of the respondent without assigning any reason.(b) A writ petition under Article 227 was maintainable against the order of the Civil Judge, Senior Division (designate of the Chief Justice) and the High Court was wrong in assuming that the writ petition was not maintainable in view of the decision of this Court in SBP. 5. Before considering the contentions raised, we may usefully refer to the following relevant provisions of section 11 of the said Act: "(4) If the appointment procedure in sub-section (3) applies and-(a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or(b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment,the appointment shall be made, upon request of a party, by the Chief justice or any person or institution designated by him.xxxx(7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justice or the person or institution designated by him is final.xxxx(10) The Chief justice may make such scheme as he may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or sub-section (6) to him." The Chief Justice of High Court of Punjab & Haryana in exercise of his power under sub-section (10) of section 11 of the Act made a scheme under which the Civil Judge, Senior Division, Chandigarh, was designated to deal with applications under sub-sections (4) to (6) of section 11 of the Act. 6. The Act does not provide for an appeal against the order of the Chief Justice or his designate made under sub section (4) or sub-sections (5) and (6) of section 11. On the other hand, sub-section (7) of section 11 makes it clear that a decision of the designate under sub-section (4), (5) or (6) of section 11 is final. As no appeal was maintainable against the order of the designate and as his order was made final, the only course available to the appellant was to challenge the order, even if it is a judicial order, by a writ petition under Article 227 of the Constitution of India. 7. The respondent contended that having regard to the decision in SBP, the remedy of the appellant was to file an appeal by seeking special leave of this Court under Article 136 of the Constitution and not by way of a writ petition under Article 227 of the Constitution of India, and the High Court was therefore justified in rejecting the writ petition as not maintainable. In SBP, decided on 26.10.2005, this Court while dealing with the scope of section 11, inter alia, held: "(a) The power exercised by the Chief Justice of the High Court under section 11(6) of the Act is not administrative power but judicial power.(b) The power under section 11(6) of the Act, in its entirety, could be delegated by the Chief Justice of a High Court only to another Judge of that High Court.(c) As the order passed by the Chief Justice of the High Court or the designated Judge of the High Court under section 11 of the Act is a judicial order, an appeal will lie against such order only under Article 136 of the Constitution of India, to the Supreme Court of India.(d) Designation of a District Judge as the authority under section 11(6) of the Act by the Chief Justice of the High Court is not warranted under the scheme of the Act. Where a District Judges had been designated by the Chief Justice of the High Court under section 11(6) of the Act, the orders made by them till 26.10.2005 will be treated as valid; but applications, if any, pending before them as on that date will stand transferred, to be dealt with by the Chief Justice of the High Court concerned or a Judge of that High Court designated by the Chief Justice." It is evident from the said decision that reference to section 11(6) of the Act includes reference to section 11(4) of the Act and reference to a District Judge as designate, will also include reference to Civil Judge, Senior Division, as designate. 8. We have already noticed that though the order under section 11(4) is a judicial order, having regard to section 11(7) relating to finality of such orders, and the absence of any provision for appeal, the order of the Civil Judge was open to challenge in a writ petition under Article 227 of the Constitution. The decision in SBP does not bar such a writ petition. The observations of this Court in SBP that against an order under section 11 of the Act, only an appeal under Article 136 of the Constitution would lie, is with reference to orders made by the Chief Justice of a High Court or by the designate Judge of that High Court. The said observations do not apply to a subordinate court functioning as Designate of the Chief Justice. This Court has repeatedly stressed that Article 136 is not intended to permit direct access to this Court where other equally efficacious remedy is available and the question involved is not of any public importance; and that this Court will not ordinarily exercise its jurisdiction under Article 136, unless the appellant has exhausted all other remedies open to him. Therefore the contention that the order of the Civil Judge, Sr. Division rejecting a petition under section 11 of the Act could only be challenged, by recourse to Article 136 is untenable. The decision in SBP did not affect the maintainability of the writ petition filed by Appellant before the High Court.9. | 1[ds]The Act does not provide for an appeal against the order of the Chief Justice or his designate made under sub section (4) or sub-sections (5) and (6) of section 11. On the other hand, sub-section (7) of section 11 makes it clear that a decision of the designate under sub-section (4), (5) or (6) of section 11 is final. As no appeal was maintainable against the order of the designate and as his order was made final, the only course available to the appellant was to challenge the order, even if it is a judicial order, by a writ petition under Article 227 of the Constitution of India.We have already noticed that though the order under section 11(4) is a judicial order, having regard to section 11(7) relating to finality of such orders, and the absence of any provision for appeal, the order of the Civil Judge was open to challenge in a writ petition under Article 227 of the Constitution. The decision in SBP does not bar such a writ petition. The observations of this Court in SBP that against an order under section 11 of the Act, only an appeal under Article 136 of the Constitution would lie, is with reference to orders made by the Chief Justice of a High Court or by the designate Judge of that High Court. The said observations do not apply to a subordinate court functioning as Designate of the Chief Justice. This Court has repeatedly stressed that Article 136 is not intended to permit direct access to this Court where other equally efficacious remedy is available and the question involved is not of any public importance; and that this Court will not ordinarily exercise its jurisdiction under Article 136, unless the appellant has exhausted all other remedies open to him. Therefore the contention that the order of the Civil Judge, Sr. Division rejecting a petition under section 11 of the Act could only be challenged, by recourse to Article 136 is untenable. The decision in SBP did not affect the maintainability of the writ petition filed by Appellant before the High Court. | 1 | 1,586 | 399 | ### 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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will not debar the Petitioner from taking such other remedy as may be available under the law." The said decision is challenged in this appeal by special leave, on the following grounds:(a) The order of the High Court is a non speaking order and it upholds the preliminary objection of the respondent without assigning any reason.(b) A writ petition under Article 227 was maintainable against the order of the Civil Judge, Senior Division (designate of the Chief Justice) and the High Court was wrong in assuming that the writ petition was not maintainable in view of the decision of this Court in SBP. 5. Before considering the contentions raised, we may usefully refer to the following relevant provisions of section 11 of the said Act: "(4) If the appointment procedure in sub-section (3) applies and-(a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or(b) the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment,the appointment shall be made, upon request of a party, by the Chief justice or any person or institution designated by him.xxxx(7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justice or the person or institution designated by him is final.xxxx(10) The Chief justice may make such scheme as he may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or sub-section (6) to him." The Chief Justice of High Court of Punjab & Haryana in exercise of his power under sub-section (10) of section 11 of the Act made a scheme under which the Civil Judge, Senior Division, Chandigarh, was designated to deal with applications under sub-sections (4) to (6) of section 11 of the Act. 6. The Act does not provide for an appeal against the order of the Chief Justice or his designate made under sub section (4) or sub-sections (5) and (6) of section 11. On the other hand, sub-section (7) of section 11 makes it clear that a decision of the designate under sub-section (4), (5) or (6) of section 11 is final. As no appeal was maintainable against the order of the designate and as his order was made final, the only course available to the appellant was to challenge the order, even if it is a judicial order, by a writ petition under Article 227 of the Constitution of India. 7. The respondent contended that having regard to the decision in SBP, the remedy of the appellant was to file an appeal by seeking special leave of this Court under Article 136 of the Constitution and not by way of a writ petition under Article 227 of the Constitution of India, and the High Court was therefore justified in rejecting the writ petition as not maintainable. In SBP, decided on 26.10.2005, this Court while dealing with the scope of section 11, inter alia, held: "(a) The power exercised by the Chief Justice of the High Court under section 11(6) of the Act is not administrative power but judicial power.(b) The power under section 11(6) of the Act, in its entirety, could be delegated by the Chief Justice of a High Court only to another Judge of that High Court.(c) As the order passed by the Chief Justice of the High Court or the designated Judge of the High Court under section 11 of the Act is a judicial order, an appeal will lie against such order only under Article 136 of the Constitution of India, to the Supreme Court of India.(d) Designation of a District Judge as the authority under section 11(6) of the Act by the Chief Justice of the High Court is not warranted under the scheme of the Act. Where a District Judges had been designated by the Chief Justice of the High Court under section 11(6) of the Act, the orders made by them till 26.10.2005 will be treated as valid; but applications, if any, pending before them as on that date will stand transferred, to be dealt with by the Chief Justice of the High Court concerned or a Judge of that High Court designated by the Chief Justice." It is evident from the said decision that reference to section 11(6) of the Act includes reference to section 11(4) of the Act and reference to a District Judge as designate, will also include reference to Civil Judge, Senior Division, as designate. 8. We have already noticed that though the order under section 11(4) is a judicial order, having regard to section 11(7) relating to finality of such orders, and the absence of any provision for appeal, the order of the Civil Judge was open to challenge in a writ petition under Article 227 of the Constitution. The decision in SBP does not bar such a writ petition. The observations of this Court in SBP that against an order under section 11 of the Act, only an appeal under Article 136 of the Constitution would lie, is with reference to orders made by the Chief Justice of a High Court or by the designate Judge of that High Court. The said observations do not apply to a subordinate court functioning as Designate of the Chief Justice. This Court has repeatedly stressed that Article 136 is not intended to permit direct access to this Court where other equally efficacious remedy is available and the question involved is not of any public importance; and that this Court will not ordinarily exercise its jurisdiction under Article 136, unless the appellant has exhausted all other remedies open to him. Therefore the contention that the order of the Civil Judge, Sr. Division rejecting a petition under section 11 of the Act could only be challenged, by recourse to Article 136 is untenable. The decision in SBP did not affect the maintainability of the writ petition filed by Appellant before the High Court.9.
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### Explanation:
The Act does not provide for an appeal against the order of the Chief Justice or his designate made under sub section (4) or sub-sections (5) and (6) of section 11. On the other hand, sub-section (7) of section 11 makes it clear that a decision of the designate under sub-section (4), (5) or (6) of section 11 is final. As no appeal was maintainable against the order of the designate and as his order was made final, the only course available to the appellant was to challenge the order, even if it is a judicial order, by a writ petition under Article 227 of the Constitution of India.We have already noticed that though the order under section 11(4) is a judicial order, having regard to section 11(7) relating to finality of such orders, and the absence of any provision for appeal, the order of the Civil Judge was open to challenge in a writ petition under Article 227 of the Constitution. The decision in SBP does not bar such a writ petition. The observations of this Court in SBP that against an order under section 11 of the Act, only an appeal under Article 136 of the Constitution would lie, is with reference to orders made by the Chief Justice of a High Court or by the designate Judge of that High Court. The said observations do not apply to a subordinate court functioning as Designate of the Chief Justice. This Court has repeatedly stressed that Article 136 is not intended to permit direct access to this Court where other equally efficacious remedy is available and the question involved is not of any public importance; and that this Court will not ordinarily exercise its jurisdiction under Article 136, unless the appellant has exhausted all other remedies open to him. Therefore the contention that the order of the Civil Judge, Sr. Division rejecting a petition under section 11 of the Act could only be challenged, by recourse to Article 136 is untenable. The decision in SBP did not affect the maintainability of the writ petition filed by Appellant before the High Court.
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Commissioner of Gift Tax, Madras Vs. N.S. Getty Chettiar | Rao J. (then a judge of the Madras High Court) after examining several authorities came to the conclusion that "partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the shares had an antecedent title and, therefore, no conveyance is involved in the process, as a conferment of a new title is not necessary". The Madras High Court again examined the question in M. K. Stremann v. commissioner of Income-tax, (1961) 41 ITR 297 = (AIR 1962 Mad 26 ) with reference to section 16 (3) (a) (iv). It observed that "obviously no question of transfer of assets can arise when all that happens is separation in status, though the result of such severance in status is that the property hitherto held by the coparcenary is held thereafter by the separated members as tenants-in-common. Subsequent partition between the divided members of the family does not amount either to a transfer of assets from that body of the tenants-in-common to each of such tenants-in-common."The Punjab High Court came to the same conclusion in Jagan Nath v. State of Punjab, (1962) 64 Pun LR 22. Agreeing with these authorities, we hold that when the joint Hindu family property was partitioned, there was no transfer of assets within section 16 (3) (a) (iii) and (iv) to the wife or the minor son."12. We are bound by the ratio of that decision and if we may say so, we respectfully agree with the statement of the law quoted above. Hence we hold that the partition in the family of the assessee did not affect any transfer as generally understood in law.13. This takes us to S. 2 (xxiv). The opening words of the provision refer to transfer of property. That clause enumerates several types of transfers and not to any other transactions. It is also necessary to attach significance to the words "or other alienation of property" immediately after setting out the various types of transfers. If we read the clause as a whole, it is clear that it deals with transfer of properties in various ways.14. As observed in Craies on Statute Law (6th Edn. p. 213) that an interpretation clause which extends the meaning of a word does not take away its ordinary meaning. An interpretation clause is not meant to prevent the word receiving its ordinary, popular and natural sense whenever that would be properly applicable, but to enable the word as used in the Act, when there is nothing in the context or the subject matter to the contrary to be applied to some things to which it would not ordinarily be applicable.15. Bearing in mind these principles, let us now examine the scope of S. 2 (xxiv), That provision speaks of "disposition", "conveyance", "assignment", "settlement", "delivery", "payment" or "other alienation of property."16. A reading of this section clearly goes to show that the words "disposition", "conveyance", "assignment "settlement", "delivery" and "payment" are used as some of the modes of transfer of property. The dictionary gives various meanings for those words but those meanings do not help us. We have to understand the meaning of those words in the context in which they are used. Words in a section of a statute are not to be interpreted by having those words in one hand and the dictionary in the other. In spe lling out the meaning of the words in a section, one must take into consideration the setting in which those terms are used and the purpose that they are intended to serve. If so understood, it is clear that the word "disposition" in the context means giving away or giving up by a person of something which was his own, "conveyance" means transfer of ownership, "assignment" means the transfer of the claim, right or property to another, "settlement" means settling the property, right or claim-conveyance or disposition of property for the benefit of another, "delivery" contemplated therein is the delivery of ones property to another for no consideration and "payment" implies gift of money by someone to another. We do not think that a partition in a H. U. F. can be considered either as "disposition" or "conveyance" or "assignment or "settlement" or "delivery" or "payment" or "alienation" within the meaning of those words in S. 2 (xxiv).17. This leaves us with cl. (d) of S. 2 (xxiv) which speaks of a transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of another person.A member of H. U. F. who, as mentioned earlier, has no definite share in the family property before division, cannot be said to diminish directly or indirectly the value of his property or to increase the value of the property of any other coparcener by agreeing to take a share lesser than what he would have got if he had gone to court to enforce his claim. Till partition, his share in the family property is indeterminate. He becomes entitled to a share in the family property only after the partition. Therefore there is no question of his either diminishing directly or indirectly the value of his own property or of increasing the value of the property of anyone else. The "transaction" referred to in cl. (d) of section 2 (xxiv) takes its colour from the main clause viz. it must be a transfer of property in some way. This conclusion of ours gets support from sub-clauses (a) to (c) of clause (xxiv) of S. 2, each of which deals with one or the other mode of transfer.If the Parliament intended to bring within the scope of that provision partitions of the type with which we are concerned, nothing was easier than to say so. In interpreting tax laws, courts merely look at the words of the section. If a case clearly comes within the section, the subject is taxed and not otherwise. | 0[ds]al appearing for the Commissioner of Gift Tax did not place any reliance before us on S. 4 of the Act. Therefore we need not consider the scope of S. 4 of theare unable to agree with Mr.that in every case of partition in a H. U. F. there should first be a division of a status and thereafter a division by metes and bounds. There are innumerable cases where a partition takes place without there being earlier any division of status. Coming to the facts of the case, there is no material before us to show that there was any division of status before the properties were actually divided. The Tribunal has not found that there was any division of status amongst the members of the family before they divided the properties. The partition deed is not before us nor are theshowing the division of the movable properties is before us. It is not known whether under the registered partition deed, there was only a partial par titian or a complete disruption of the familyThat being so, we have to proceed on the basis of the facts found by the Tribunal and apply the law to the facts so found. The argument that there was first a division of status and the same was followed up by a division by metes and bounds does not appear to have been urged before the Tribunal. Under these circumstances, it is not necessary for us to consider what would be the position in law it there was first a division of status in a H. U. F. and the same was followed up by division by metes and bounds in which division one of the coparceners takes properties less than to what he is entitled to under law.9. Before proceeding to examine the relevant provisions of the Act, it is necessary to mention that according to the true notion of an undivided Hindu family, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share namely a third or a fourth. All the coparceners in a Hindu joint family are the joint owners of the properties of the family. So long as the family remains joint, no coparcener can predicate what his share in the joint family is. His share gets determined only when there is a division of status or a division by metes and bounds. Therefore it is not correct to assume that a coparcener in Hindu joint family has any definite share in the family property, before its division. Having stated that much, let us now proceed to consider the relevant provisions of the Act.It is now settled by the decision of this Court in Commissioner ofGujarat v. Keshavlal Lallubhai Patel, 55 ITR 637 = (AIR 1965 SC 866 ) that a partition of joint Hindu family property cannot be considered as transfer in the strict sense the sense in which all legal expressions are understood and more particularly in tax laws. In the course of that judgment Sikri J. (as he then was) speaking for the Courtis a partition of joint Hindu family property a transfer in the strict sense? We are of the opinion, that it is not. This was so held in Radhakrishnayya v. Sarasamma, ILR (1951) Mad 607 = (AIR 1951 Mad 213 ). Subba Rao J. (then a judge of the Madras High Court) after examining several authorities came to the conclusion that "partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the shares had an antecedent title and, therefore, no conveyance is involved in the process, as a conferment of a new title is not necessary". The Madras High Court again examined the question in M. K. Stremann v. commissioner of(1961) 41 ITR 297 = (AIR 1962 Mad 26 ) with reference to section 16 (3) (a) (iv). It observed that "obviously no question of transfer of assets can arise when all that happens is separation in status, though the result of such severance in status is that the property hitherto held by the coparcenary is held thereafter by the separated members asSubsequent partition between the divided members of the family does not amount either to a transfer of assets from that body of theto each of suchPunjab High Court came to the same conclusion in Jagan Nath v. State of Punjab, (1962) 64 Pun LR 22. Agreeing with these authorities, we hold that when the joint Hindu family property was partitioned, there was no transfer of assets within section 16 (3) (a) (iii) and (iv) to the wife or the minor son.We are bound by the ratio of that decision and if we may say so, we respectfully agree with the statement of the law quoted above. Hence we hold that the partition in the family of the assessee did not affect any transfer as generally understood in law.13. This takes us to S. 2 (xxiv). The opening words of the provision refer to transfer of property. That clause enumerates several types of transfers and not to any other transactions. It is also necessary to attach significance to the words "or other alienation of property" immediately after setting out the various types of transfers. If we read the clause as a whole, it is clear that it deals with transfer of properties in various ways.14. As observed in Craies on Statute Law (6th Edn. p. 213) that an interpretation clause which extends the meaning of a word does not take away its ordinary meaning. An interpretation clause is not meant to prevent the word receiving its ordinary, popular and natural sense whenever that would be properly applicable, but to enable the word as used in the Act, when there is nothing in the context or the subject matter to the contrary to be applied to some things to which it would not ordinarily be applicable.15. Bearing in mind these principles, let us now examine the scope of S. 2 (xxiv), That provision speaks of "disposition", "conveyance", "assignment", "settlement", "delivery", "payment" or "other alienation of property."16. A reading of this section clearly goes to show that the words "disposition", "conveyance", "assignment "settlement", "delivery" and "payment" are used as some of the modes of transfer of property. The dictionary gives various meanings for those words but those meanings do not help us. We have to understand the meaning of those words in the context in which they are used. Words in a section of a statute are not to be interpreted by having those words in one hand and the dictionary in the other. In spe lling out the meaning of the words in a section, one must take into consideration the setting in which those terms are used and the purpose that they are intended to serve. If so understood, it is clear that the word "disposition" in the context means giving away or giving up by a person of something which was his own, "conveyance" means transfer of ownership, "assignment" means the transfer of the claim, right or property to another, "settlement" means settling the property, right oror disposition of property for the benefit of another, "delivery" contemplated therein is the delivery of ones property to another for no consideration and "payment" implies gift of money by someone to another. We do not think that a partition in a H. U. F. can be considered either as "disposition" or "conveyance" or "assignment or "settlement" or "delivery" or "payment" or "alienation" within the meaning of those words in S. 2 (xxiv).17. This leaves us with cl. (d) of S. 2 (xxiv) which speaks of a transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of another person.A member of H. U. F. who, as mentioned earlier, has no definite share in the family property before division, cannot be said to diminish directly or indirectly the value of his property or to increase the value of the property of any other coparcener by agreeing to take a share lesser than what he would have got if he had gone to court to enforce his claim. Till partition, his share in the family property is indeterminate. He becomes entitled to a share in the family property only after the partition. Therefore there is no question of his either diminishing directly or indirectly the value of his own property or of increasing the value of the property of anyone else. The "transaction" referred to in cl. (d) of section 2 (xxiv) takes its colour from the main clause viz. it must be a transfer of property in some way. This conclusion of ours gets support from(a) to (c) of clause (xxiv) of S. 2, each of which deals with one or the other mode of transfer.If the Parliament intended to bring within the scope of that provision partitions of the type with which we are concerned, nothing was easier than to say so. In interpreting tax laws, courts merely look at the words of the section. If a case clearly comes within the section, the subject is taxed and not otherwise. | 0 | 3,141 | 1,778 | ### 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:
Rao J. (then a judge of the Madras High Court) after examining several authorities came to the conclusion that "partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the shares had an antecedent title and, therefore, no conveyance is involved in the process, as a conferment of a new title is not necessary". The Madras High Court again examined the question in M. K. Stremann v. commissioner of Income-tax, (1961) 41 ITR 297 = (AIR 1962 Mad 26 ) with reference to section 16 (3) (a) (iv). It observed that "obviously no question of transfer of assets can arise when all that happens is separation in status, though the result of such severance in status is that the property hitherto held by the coparcenary is held thereafter by the separated members as tenants-in-common. Subsequent partition between the divided members of the family does not amount either to a transfer of assets from that body of the tenants-in-common to each of such tenants-in-common."The Punjab High Court came to the same conclusion in Jagan Nath v. State of Punjab, (1962) 64 Pun LR 22. Agreeing with these authorities, we hold that when the joint Hindu family property was partitioned, there was no transfer of assets within section 16 (3) (a) (iii) and (iv) to the wife or the minor son."12. We are bound by the ratio of that decision and if we may say so, we respectfully agree with the statement of the law quoted above. Hence we hold that the partition in the family of the assessee did not affect any transfer as generally understood in law.13. This takes us to S. 2 (xxiv). The opening words of the provision refer to transfer of property. That clause enumerates several types of transfers and not to any other transactions. It is also necessary to attach significance to the words "or other alienation of property" immediately after setting out the various types of transfers. If we read the clause as a whole, it is clear that it deals with transfer of properties in various ways.14. As observed in Craies on Statute Law (6th Edn. p. 213) that an interpretation clause which extends the meaning of a word does not take away its ordinary meaning. An interpretation clause is not meant to prevent the word receiving its ordinary, popular and natural sense whenever that would be properly applicable, but to enable the word as used in the Act, when there is nothing in the context or the subject matter to the contrary to be applied to some things to which it would not ordinarily be applicable.15. Bearing in mind these principles, let us now examine the scope of S. 2 (xxiv), That provision speaks of "disposition", "conveyance", "assignment", "settlement", "delivery", "payment" or "other alienation of property."16. A reading of this section clearly goes to show that the words "disposition", "conveyance", "assignment "settlement", "delivery" and "payment" are used as some of the modes of transfer of property. The dictionary gives various meanings for those words but those meanings do not help us. We have to understand the meaning of those words in the context in which they are used. Words in a section of a statute are not to be interpreted by having those words in one hand and the dictionary in the other. In spe lling out the meaning of the words in a section, one must take into consideration the setting in which those terms are used and the purpose that they are intended to serve. If so understood, it is clear that the word "disposition" in the context means giving away or giving up by a person of something which was his own, "conveyance" means transfer of ownership, "assignment" means the transfer of the claim, right or property to another, "settlement" means settling the property, right or claim-conveyance or disposition of property for the benefit of another, "delivery" contemplated therein is the delivery of ones property to another for no consideration and "payment" implies gift of money by someone to another. We do not think that a partition in a H. U. F. can be considered either as "disposition" or "conveyance" or "assignment or "settlement" or "delivery" or "payment" or "alienation" within the meaning of those words in S. 2 (xxiv).17. This leaves us with cl. (d) of S. 2 (xxiv) which speaks of a transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of another person.A member of H. U. F. who, as mentioned earlier, has no definite share in the family property before division, cannot be said to diminish directly or indirectly the value of his property or to increase the value of the property of any other coparcener by agreeing to take a share lesser than what he would have got if he had gone to court to enforce his claim. Till partition, his share in the family property is indeterminate. He becomes entitled to a share in the family property only after the partition. Therefore there is no question of his either diminishing directly or indirectly the value of his own property or of increasing the value of the property of anyone else. The "transaction" referred to in cl. (d) of section 2 (xxiv) takes its colour from the main clause viz. it must be a transfer of property in some way. This conclusion of ours gets support from sub-clauses (a) to (c) of clause (xxiv) of S. 2, each of which deals with one or the other mode of transfer.If the Parliament intended to bring within the scope of that provision partitions of the type with which we are concerned, nothing was easier than to say so. In interpreting tax laws, courts merely look at the words of the section. If a case clearly comes within the section, the subject is taxed and not otherwise.
### Response:
0
### Explanation:
Mad 607 = (AIR 1951 Mad 213 ). Subba Rao J. (then a judge of the Madras High Court) after examining several authorities came to the conclusion that "partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the shares had an antecedent title and, therefore, no conveyance is involved in the process, as a conferment of a new title is not necessary". The Madras High Court again examined the question in M. K. Stremann v. commissioner of(1961) 41 ITR 297 = (AIR 1962 Mad 26 ) with reference to section 16 (3) (a) (iv). It observed that "obviously no question of transfer of assets can arise when all that happens is separation in status, though the result of such severance in status is that the property hitherto held by the coparcenary is held thereafter by the separated members asSubsequent partition between the divided members of the family does not amount either to a transfer of assets from that body of theto each of suchPunjab High Court came to the same conclusion in Jagan Nath v. State of Punjab, (1962) 64 Pun LR 22. Agreeing with these authorities, we hold that when the joint Hindu family property was partitioned, there was no transfer of assets within section 16 (3) (a) (iii) and (iv) to the wife or the minor son.We are bound by the ratio of that decision and if we may say so, we respectfully agree with the statement of the law quoted above. Hence we hold that the partition in the family of the assessee did not affect any transfer as generally understood in law.13. This takes us to S. 2 (xxiv). The opening words of the provision refer to transfer of property. That clause enumerates several types of transfers and not to any other transactions. It is also necessary to attach significance to the words "or other alienation of property" immediately after setting out the various types of transfers. If we read the clause as a whole, it is clear that it deals with transfer of properties in various ways.14. As observed in Craies on Statute Law (6th Edn. p. 213) that an interpretation clause which extends the meaning of a word does not take away its ordinary meaning. An interpretation clause is not meant to prevent the word receiving its ordinary, popular and natural sense whenever that would be properly applicable, but to enable the word as used in the Act, when there is nothing in the context or the subject matter to the contrary to be applied to some things to which it would not ordinarily be applicable.15. Bearing in mind these principles, let us now examine the scope of S. 2 (xxiv), That provision speaks of "disposition", "conveyance", "assignment", "settlement", "delivery", "payment" or "other alienation of property."16. A reading of this section clearly goes to show that the words "disposition", "conveyance", "assignment "settlement", "delivery" and "payment" are used as some of the modes of transfer of property. The dictionary gives various meanings for those words but those meanings do not help us. We have to understand the meaning of those words in the context in which they are used. Words in a section of a statute are not to be interpreted by having those words in one hand and the dictionary in the other. In spe lling out the meaning of the words in a section, one must take into consideration the setting in which those terms are used and the purpose that they are intended to serve. If so understood, it is clear that the word "disposition" in the context means giving away or giving up by a person of something which was his own, "conveyance" means transfer of ownership, "assignment" means the transfer of the claim, right or property to another, "settlement" means settling the property, right oror disposition of property for the benefit of another, "delivery" contemplated therein is the delivery of ones property to another for no consideration and "payment" implies gift of money by someone to another. We do not think that a partition in a H. U. F. can be considered either as "disposition" or "conveyance" or "assignment or "settlement" or "delivery" or "payment" or "alienation" within the meaning of those words in S. 2 (xxiv).17. This leaves us with cl. (d) of S. 2 (xxiv) which speaks of a transaction entered into by any person with intent thereby to diminish directly or indirectly the value of his own property and to increase the value of the property of another person.A member of H. U. F. who, as mentioned earlier, has no definite share in the family property before division, cannot be said to diminish directly or indirectly the value of his property or to increase the value of the property of any other coparcener by agreeing to take a share lesser than what he would have got if he had gone to court to enforce his claim. Till partition, his share in the family property is indeterminate. He becomes entitled to a share in the family property only after the partition. Therefore there is no question of his either diminishing directly or indirectly the value of his own property or of increasing the value of the property of anyone else. The "transaction" referred to in cl. (d) of section 2 (xxiv) takes its colour from the main clause viz. it must be a transfer of property in some way. This conclusion of ours gets support from(a) to (c) of clause (xxiv) of S. 2, each of which deals with one or the other mode of transfer.If the Parliament intended to bring within the scope of that provision partitions of the type with which we are concerned, nothing was easier than to say so. In interpreting tax laws, courts merely look at the words of the section. If a case clearly comes within the section, the subject is taxed and not otherwise.
|
Dahyabhai Ranchhoddas Dhobi Vs. State Of Gujarat | clear that reference to the subsequent provisions of the Act to the date of publication of declaration has to be determined as the last of the dates of the publication and the giving of public notice. As the date of publication by local publication was the last at that point of time i.e. 15-3- 1991, the award on 25-3-1992 was not beyond the prescribed period of limitation." 16) In Kunwar Pal Singh (dead) by LRs vs. State of U.P. and Others, (2007) 5 SCC 85 , Panta, J. speaking for the Bench held: "17. The provisions of Section 11-A are intended to benefit the landowner and ensure that the award is made within a period of two years from the date of the declaration under Section 6. In ordinary course, therefore, when the Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, the proceedings will lapse. The period of two years referred to in Section 11-A shall be computed by counting from the last of the publication dates, as per the prescribed modes of publication.25. Again, in Bihar State Housing Board v. State of Bihar this Court reiterating the proposition of law has held that modes of publication of declaration prescribed under Section 6(2) are conjoint and cumulative and all of them must be resorted to and completed. Sub-section (2) of Section 6 of the Act necessarily makes it abundantly clear that the last of the dates of the publication and giving of such public notice shall "hereinafter" be referred to as the date of publication of the declaration and limitation period of two years for making award under Section 11-A has to be counted as the last of the dates out of the three modes of publication specified in Section 6 of the Act." 17) In the case on hand, it is clearly indicated in the reply affidavit filed by the Special Land Acquisition Officer that the notification under Section 6 was last published on 19.04.1990, by affixing a copy of the Notification on the notice board of the office of City Mamlatdar, Surat and also by affixing the same in ward No.4 of Surat city. Hence the period of two years stipulated in Section 11A would begin to run from 19.04.1990 and, therefore, the publication of the Award under Section 11 of the Act on 18.04.1992 was within the stipulated time limit of two years. In such circumstances, this contention also is liable to be rejected as devoid of any merit.18) Learned senior counsel for the appellants submitted that inasmuch as the respondents, by a notification, has changed the classification of the land in question and designated as "residential use" at this moment, they are not permitted to set up a school in the land in question. In the counter affidavit filed by the Director of Planning, Surat Municipal Corporation has highlighted that the land in question has been reserved for school purpose in the development plan sanctioned by the State Government under the provisions of Gujarat Town Planning and Urban Development Act, 1976. As per Section 20 of the said Act, the acquiring body, namely, Surat Municipal Corporation is required to acquire the land under the Land Acquisition Act as the impugned land is reserved for school purpose. Further, inasmuch as the land in question is kept under reservation for school in the sanctioned development plan for the State Government under Section 17 of the Gujarat Town Planning & Urban Development Act, it is the duty of the Corporation to acquire the land for implementing the provisions of the same. In view of the same, this contention is also liable to be rejected.19) Mr. Ranjit Kumar, learned senior counsel for the appellants has also submitted that in view of existence of many schools in and around the vicinity, there is no need to establish a school in the land of the appellants. In respect of the said claim, the Director of Planning, Surat Municipal Corporation, in the counter affidavit has stated that there is no municipal school near the site in question and that the schools of the Corporation which are located in Begampura, Moti Talkies, Mumbaivad, Shetranjivad, Viramgami Maholla are very far from the land under acquisition and due to increase in population in the city of Surat, they are justified in establishing a school for providing primary education to the children in the said area. In respect of `need and `necessity, it is for the Government and their authorities to take a decision considering various aspects. If such a decision is taken based on materials it is not for the Court to doubt their claim. It is also stated that the Surat Municipal Corporation is required to pay the amount of compensation to the tune of Rs.10,54,901.95 and the said amount has already been deposited with the Government Treasury on 27.05.1992. In view of the above information, the contention of learned senior counsel for the appellants is to be rejected.20) Finally, learned senior counsel for the appellants, by drawing our attention to the recent decision of this Court in Avinash Mehrotra vs. Union of India and Others, (2009) 6 SCC 398 submitted that in view of the strict conditions issued by this Court for establishing a school particularly in a crowded city, the respondents cannot fulfill those conditions and on this ground also the acquisition proceeding is liable to be dropped. It is true that in view of what had happened in Lord Krishna Middle School in Kumbakonam in the State of Tamil Nadu, this Court issued several directions and conditions, safety measures and standards for establishing a school. In our view, it is the duty of the State and their educational authorities to adhere to all those conditions before commencing a school in the land in question. | 0[ds]17) In the case on hand, it is clearly indicated in the reply affidavit filed by the Special Land Acquisition Officer that the notification under Section 6 was last published on 19.04.1990, by affixing a copy of the Notification on the notice board of the office of City Mamlatdar, Surat and also by affixing the same in ward No.4 of Surat city. Hence the period of two years stipulated in Section 11A would begin to run from 19.04.1990 and, therefore, the publication of the Award under Section 11 of the Act on 18.04.1992 was within the stipulated time limit of two years. In such circumstances, this contention also is liable to be rejected as devoid of any merit.18) Learned senior counsel for the appellants submitted that inasmuch as the respondents, by a notification, has changed the classification of the land in question and designated as "residential use" at this moment, they are not permitted to set up a school in the land in question. In the counter affidavit filed by the Director of Planning, Surat Municipal Corporation has highlighted that the land in question has been reserved for school purpose in the development plan sanctioned by the State Government under the provisions of Gujarat Town Planning and Urban Development Act, 1976. As per Section 20 of the said Act, the acquiring body, namely, Surat Municipal Corporation is required to acquire the land under the Land Acquisition Act as the impugned land is reserved for school purpose. Further, inasmuch as the land in question is kept under reservation for school in the sanctioned development plan for the State Government under Section 17 of the Gujarat Town Planning & Urban Development Act, it is the duty of the Corporation to acquire the land for implementing the provisions of the same. In view of the same, this contention is also liable to be rejected.19) Mr. Ranjit Kumar, learned senior counsel for the appellants has also submitted that in view of existence of many schools in and around the vicinity, there is no need to establish a school in the land of the appellants. In respect of the said claim, the Director of Planning, Surat Municipal Corporation, in the counter affidavit has stated that there is no municipal school near the site in question and that the schools of the Corporation which are located in Begampura, Moti Talkies, Mumbaivad, Shetranjivad, Viramgami Maholla are very far from the land under acquisition and due to increase in population in the city of Surat, they are justified in establishing a school for providing primary education to the children in the said area. In respect of `need and `necessity, it is for the Government and their authorities to take a decision considering various aspects. If such a decision is taken based on materials it is not for the Court to doubt their claim. It is also stated that the Surat Municipal Corporation is required to pay the amount of compensation to the tune of Rs.10,54,901.95 and the said amount has already been deposited with the Government Treasury on 27.05.1992. In view of the above information, the contention of learned senior counsel for the appellants is to be rejected.20) Finally, learned senior counsel for the appellants, by drawing our attention to the recent decision of this Court in Avinash Mehrotra vs. Union of India and Others, (2009) 6 SCC 398 submitted that in view of the strict conditions issued by this Court for establishing a school particularly in a crowded city, the respondents cannot fulfill those conditions and on this ground also the acquisition proceeding is liable to be dropped. It is true that in view of what had happened in Lord Krishna Middle School in Kumbakonam in the State of Tamil Nadu, this Court issued several directions and conditions, safety measures and standards for establishing a school. In our view, it is the duty of the State and their educational authorities to adhere to all those conditions before commencing a school in the land in question. | 0 | 5,926 | 733 | ### 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:
clear that reference to the subsequent provisions of the Act to the date of publication of declaration has to be determined as the last of the dates of the publication and the giving of public notice. As the date of publication by local publication was the last at that point of time i.e. 15-3- 1991, the award on 25-3-1992 was not beyond the prescribed period of limitation." 16) In Kunwar Pal Singh (dead) by LRs vs. State of U.P. and Others, (2007) 5 SCC 85 , Panta, J. speaking for the Bench held: "17. The provisions of Section 11-A are intended to benefit the landowner and ensure that the award is made within a period of two years from the date of the declaration under Section 6. In ordinary course, therefore, when the Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, the proceedings will lapse. The period of two years referred to in Section 11-A shall be computed by counting from the last of the publication dates, as per the prescribed modes of publication.25. Again, in Bihar State Housing Board v. State of Bihar this Court reiterating the proposition of law has held that modes of publication of declaration prescribed under Section 6(2) are conjoint and cumulative and all of them must be resorted to and completed. Sub-section (2) of Section 6 of the Act necessarily makes it abundantly clear that the last of the dates of the publication and giving of such public notice shall "hereinafter" be referred to as the date of publication of the declaration and limitation period of two years for making award under Section 11-A has to be counted as the last of the dates out of the three modes of publication specified in Section 6 of the Act." 17) In the case on hand, it is clearly indicated in the reply affidavit filed by the Special Land Acquisition Officer that the notification under Section 6 was last published on 19.04.1990, by affixing a copy of the Notification on the notice board of the office of City Mamlatdar, Surat and also by affixing the same in ward No.4 of Surat city. Hence the period of two years stipulated in Section 11A would begin to run from 19.04.1990 and, therefore, the publication of the Award under Section 11 of the Act on 18.04.1992 was within the stipulated time limit of two years. In such circumstances, this contention also is liable to be rejected as devoid of any merit.18) Learned senior counsel for the appellants submitted that inasmuch as the respondents, by a notification, has changed the classification of the land in question and designated as "residential use" at this moment, they are not permitted to set up a school in the land in question. In the counter affidavit filed by the Director of Planning, Surat Municipal Corporation has highlighted that the land in question has been reserved for school purpose in the development plan sanctioned by the State Government under the provisions of Gujarat Town Planning and Urban Development Act, 1976. As per Section 20 of the said Act, the acquiring body, namely, Surat Municipal Corporation is required to acquire the land under the Land Acquisition Act as the impugned land is reserved for school purpose. Further, inasmuch as the land in question is kept under reservation for school in the sanctioned development plan for the State Government under Section 17 of the Gujarat Town Planning & Urban Development Act, it is the duty of the Corporation to acquire the land for implementing the provisions of the same. In view of the same, this contention is also liable to be rejected.19) Mr. Ranjit Kumar, learned senior counsel for the appellants has also submitted that in view of existence of many schools in and around the vicinity, there is no need to establish a school in the land of the appellants. In respect of the said claim, the Director of Planning, Surat Municipal Corporation, in the counter affidavit has stated that there is no municipal school near the site in question and that the schools of the Corporation which are located in Begampura, Moti Talkies, Mumbaivad, Shetranjivad, Viramgami Maholla are very far from the land under acquisition and due to increase in population in the city of Surat, they are justified in establishing a school for providing primary education to the children in the said area. In respect of `need and `necessity, it is for the Government and their authorities to take a decision considering various aspects. If such a decision is taken based on materials it is not for the Court to doubt their claim. It is also stated that the Surat Municipal Corporation is required to pay the amount of compensation to the tune of Rs.10,54,901.95 and the said amount has already been deposited with the Government Treasury on 27.05.1992. In view of the above information, the contention of learned senior counsel for the appellants is to be rejected.20) Finally, learned senior counsel for the appellants, by drawing our attention to the recent decision of this Court in Avinash Mehrotra vs. Union of India and Others, (2009) 6 SCC 398 submitted that in view of the strict conditions issued by this Court for establishing a school particularly in a crowded city, the respondents cannot fulfill those conditions and on this ground also the acquisition proceeding is liable to be dropped. It is true that in view of what had happened in Lord Krishna Middle School in Kumbakonam in the State of Tamil Nadu, this Court issued several directions and conditions, safety measures and standards for establishing a school. In our view, it is the duty of the State and their educational authorities to adhere to all those conditions before commencing a school in the land in question.
### Response:
0
### Explanation:
17) In the case on hand, it is clearly indicated in the reply affidavit filed by the Special Land Acquisition Officer that the notification under Section 6 was last published on 19.04.1990, by affixing a copy of the Notification on the notice board of the office of City Mamlatdar, Surat and also by affixing the same in ward No.4 of Surat city. Hence the period of two years stipulated in Section 11A would begin to run from 19.04.1990 and, therefore, the publication of the Award under Section 11 of the Act on 18.04.1992 was within the stipulated time limit of two years. In such circumstances, this contention also is liable to be rejected as devoid of any merit.18) Learned senior counsel for the appellants submitted that inasmuch as the respondents, by a notification, has changed the classification of the land in question and designated as "residential use" at this moment, they are not permitted to set up a school in the land in question. In the counter affidavit filed by the Director of Planning, Surat Municipal Corporation has highlighted that the land in question has been reserved for school purpose in the development plan sanctioned by the State Government under the provisions of Gujarat Town Planning and Urban Development Act, 1976. As per Section 20 of the said Act, the acquiring body, namely, Surat Municipal Corporation is required to acquire the land under the Land Acquisition Act as the impugned land is reserved for school purpose. Further, inasmuch as the land in question is kept under reservation for school in the sanctioned development plan for the State Government under Section 17 of the Gujarat Town Planning & Urban Development Act, it is the duty of the Corporation to acquire the land for implementing the provisions of the same. In view of the same, this contention is also liable to be rejected.19) Mr. Ranjit Kumar, learned senior counsel for the appellants has also submitted that in view of existence of many schools in and around the vicinity, there is no need to establish a school in the land of the appellants. In respect of the said claim, the Director of Planning, Surat Municipal Corporation, in the counter affidavit has stated that there is no municipal school near the site in question and that the schools of the Corporation which are located in Begampura, Moti Talkies, Mumbaivad, Shetranjivad, Viramgami Maholla are very far from the land under acquisition and due to increase in population in the city of Surat, they are justified in establishing a school for providing primary education to the children in the said area. In respect of `need and `necessity, it is for the Government and their authorities to take a decision considering various aspects. If such a decision is taken based on materials it is not for the Court to doubt their claim. It is also stated that the Surat Municipal Corporation is required to pay the amount of compensation to the tune of Rs.10,54,901.95 and the said amount has already been deposited with the Government Treasury on 27.05.1992. In view of the above information, the contention of learned senior counsel for the appellants is to be rejected.20) Finally, learned senior counsel for the appellants, by drawing our attention to the recent decision of this Court in Avinash Mehrotra vs. Union of India and Others, (2009) 6 SCC 398 submitted that in view of the strict conditions issued by this Court for establishing a school particularly in a crowded city, the respondents cannot fulfill those conditions and on this ground also the acquisition proceeding is liable to be dropped. It is true that in view of what had happened in Lord Krishna Middle School in Kumbakonam in the State of Tamil Nadu, this Court issued several directions and conditions, safety measures and standards for establishing a school. In our view, it is the duty of the State and their educational authorities to adhere to all those conditions before commencing a school in the land in question.
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State Of Mysore & Anr Vs. K. G. Jagannath | That is because only five standing passengers are allowed in a bus with a carrying capacity of 30 and 10 standing passengers are allowed in a bus with a carrying capacity of 40 and above. The tax payable in respect of standing passengers is Rs. 10 per quarter. The tax payable under the Mysore Motor Vehicles (Taxation on Passengers and Goods) Act, l961 need not detain us for long because under that Act the operator is enabled to pass on the tax to the passengers.8. The difficulty mentioned on behalf of the respondent about the need to get the permit amended in order to allow for the increased capacity imposed by Rule 137 and provision of Section 48 (3) (xxi) regarding the variation of the conditions of the permit need not detain us for long because under the new Section 59 (2), as amended by Act 56 of 1969, the holder of a permit may, with the permission of the authority by which the permit was granted replace any vehicle covered by the permit by any other vehicle of the same nature. Under Rule 131 the procedure for replacing any vehicle covered by a permit by a vehicle of a different type or of a different capacity is also made clearly very simple and where it is of the same type or capacity the variation has to be granted within a week. We are also of opinion that the power conferred by Section 70 of the Act is wide enough to enable the making of the impugned Rule.9. The validity of the Rule at present has to be considered not merely from the point of view of the effect it has on a particular individual like the respondent. It has to be looked at from the point of view of the generality of the motor vehicles operators as well as the public. We have shown above that the vehicles with the minimum capacity available in this country can carry 35 passengers and if, as is alleged by the respondent, the average number of passengers in buses over this route is only 25 the proper thing to do in due course is to reduce the number of vehicles plying on this route. Otherwise, it would mean unnecessary waste of valuable transport space and facility. Buses so released could be used elsewhere to much greater advantage to the travelling public. There are many areas and many routes crying for transport facilities and they would be better served. We are unable to place any weight on the basis of an argument which affects one or two individuals, where by insisting upon this provision of a minimum seating capacity the larger public interest will be served. If it causes some inconvenience to a few individuals like the respondent they have got to face the situation. It appears from the additional affidavit filed by the petitioner (respondent herein) that he has got four buses running between Doddaballapur and Tumkur If it is found that the average number of passengers is only 25, the proper thing to do would be for him to cut down his buses on this route from four to three. In that case there can be no question of his suffering any losses or his being affected in any way in the matter of his carrying on his business.10. Though it is not in evidence it may be presumed that the cost of operation of a bus whether it is provided with 30 or 40 seats may not be very much different and there will be the additional facility available to the public if the bus has more seats. Moreover, as traffic grows, as it has a tendency to grow everywhere; the public will be better served. We are unable to accept the contention that the Rule providing for minimum number of seats is, intended to secure more revenue indirectly. The State can do it directly by increasing the rate of tax. It is really a rule intended for the ? benefit of the travelling public. We see no reason not to accept the statement made on behalf of the State that the passenger traffic on every route in the State has increased by leaps and bounds, that generally it was found that the stage carriage operators were carrying passengers in excess of the seating capacity specified in the Registration Certificate and the permit to the serious inconvenience and discomfort of the travelling public in addition to causing loss of revenue to the State, and it was with a view to eliminate the above evils that the impugned Rule has been framed.11. We are unable to agree with the High Court that as usually there are only regulations regarding the maximum number of seats, any regulation regarding the minimum number of seats being very uncommon has to be specially defended. We have shown above that the regulation is really in the interest of the general travailing public. Nor are we able to agree with the High Court that the State has not taken into account the prevailing conditions in the country with regard to the manufacture and availability of bus chassis. The minimum number of seats insisted upon depends upon the chassis. In this very case itself as we have seen the respondent really wants to provide 30 seats in the chassis which can provide 40 seats. It is not necessary to say anything regarding the luxury buses which were considered by the High Court because that matter was not argued before us. Apparently the State has decided to make the necessary provision in this regard. Stage carriage operators exclusively in cities and towns form a class by themselves and the exemption in their case has a direct relation to the objective sought to be achieved. There is- no question here of any arbitrary or excessive invasion of the respondents rights. The Rule is one of general application which can be justified as being in the interest of the general travelling public. | 1[ds]6. It must be made clear that all that is insisted upon under the impugned Rule is the minimum number of seats to be provided in the bus. It has been urged on behalf of the State that the intention behind providing buses with bigger bodies with lesser number of seats than they can be provided with is really intended to carry a larger number of passengers and pay a lesser tax. Though it is true that the State has the necessary machinery to check such contravention it cannot always succeed in doing so. However, we do not consider that the mere possibility of such overloading can justify the making of the impugned rule. It has been urged on behalf of the State that the demand for transport has been rising by leaps and bounds every year, whereas on behalf of the respondent It has been contended that the average number of passengers carried in his bus on this route is about 25. The great demand for transport and the rush for seats in buses is too well known to need emphasis. It appears to us that when a certain chassis is capable of having a body constructed on it so that it can carry a certain number of passengers, to construct on that body a lesser number of seats is a waste of valuable transportation facility. Even on this route there are 14 buses plying between the two points in addition to longer distance buses, of which the stage between Doddaballapur and Tumkur forms a section. So it cannot be said that the demand here is as little as is urged on behalf of the respondent. There is no reason to disbelieve the averment made on behalf of the State on this point.7. The difference in taxation between a bus which carries 30 passengers and a bus carrying 40 passengers is about R. 4001per quarter or Rs. 1600/per year whereas the difference is Rs. 225/per quarter between a bus carrying 30 and one carrying 35 passengers. That is because only five standing passengers are allowed in a bus with a carrying capacity of 30 and 10 standing passengers are allowed in a bus with a carrying capacity of 40 and above. The tax payable in respect of standing passengers is Rs. 10 per quarter. The tax payable under the Mysore Motor Vehicles (Taxation on Passengers and Goods) Act, l961 need not detain us for long because under that Act the operator is enabled to pass on the tax to the passengers.8. The difficulty mentioned on behalf of the respondent about the need to get the permit amended in order to allow for the increased capacity imposed by Rule 137 and provision of Section 48 (3) (xxi) regarding the variation of the conditions of the permit need not detain us for long because under the new Section 59 (2), as amended by Act 56 of 1969, the holder of a permit may, with the permission of the authority by which the permit was granted replace any vehicle covered by the permit by any other vehicle of the same nature. Under Rule 131 the procedure for replacing any vehicle covered by a permit by a vehicle of a different type or of a different capacity is also made clearly very simple and where it is of the same type or capacity the variation has to be granted within a week. We are also of opinion that the power conferred by Section 70 of the Act is wide enough to enable the making of the impugned Rule.9. The validity of the Rule at present has to be considered not merely from the point of view of the effect it has on a particular individual like the respondent. It has to be looked at from the point of view of the generality of the motor vehicles operators as well as the public. We have shown above that the vehicles with the minimum capacity available in this country can carry 35 passengers and if, as is alleged by the respondent, the average number of passengers in buses over this route is only 25 the proper thing to do in due course is to reduce the number of vehicles plying on this route. Otherwise, it would mean unnecessary waste of valuable transport space and facility. Buses so released could be used elsewhere to much greater advantage to the travelling public. There are many areas and many routes crying for transport facilities and they would be better served. We are unable to place any weight on the basis of an argument which affects one or two individuals, where by insisting upon this provision of a minimum seating capacity the larger public interest will be served. If it causes some inconvenience to a few individuals like the respondent they have got to face the situation. It appears from the additional affidavit filed by the petitioner (respondent herein) that he has got four buses running between Doddaballapur and Tumkur If it is found that the average number of passengers is only 25, the proper thing to do would be for him to cut down his buses on this route from four to three. In that case there can be no question of his suffering any losses or his being affected in any way in the matter of his carrying on hissee no reason not to accept the statement made on behalf of the State that the passenger traffic on every route in the State has increased by leaps and bounds, that generally it was found that the stage carriage operators were carrying passengers in excess of the seating capacity specified in the Registration Certificate and the permit to the serious inconvenience and discomfort of the travelling public in addition to causing loss of revenue to the State, and it was with a view to eliminate the above evils that the impugned Rule has been framed.11. We are unable to agree with the High Court that as usually there are only regulations regarding the maximum number of seats, any regulation regarding the minimum number of seats being very uncommon has to be specially defended. We have shown above that the regulation is really in the interest of the general travailing public. Nor are we able to agree with the High Court that the State has not taken into account the prevailing conditions in the country with regard to the manufacture and availability of bus chassis. The minimum number of seats insisted upon depends upon the chassis. In this very case itself as we have seen the respondent really wants to provide 30 seats in the chassis which can provide 40 seats. It is not necessary to say anything regarding the luxury buses which were considered by the High Court because that matter was not argued before us. Apparently the State has decided to make the necessary provision in this regard. Stage carriage operators exclusively in cities and towns form a class by themselves and the exemption in their case has a direct relation to the objective sought to be achieved. There isno question here of any arbitrary or excessive invasion of the respondents rights. The Rule is one of general application which can be justified as being in the interest of the general travelling public. | 1 | 2,458 | 1,289 | ### 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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That is because only five standing passengers are allowed in a bus with a carrying capacity of 30 and 10 standing passengers are allowed in a bus with a carrying capacity of 40 and above. The tax payable in respect of standing passengers is Rs. 10 per quarter. The tax payable under the Mysore Motor Vehicles (Taxation on Passengers and Goods) Act, l961 need not detain us for long because under that Act the operator is enabled to pass on the tax to the passengers.8. The difficulty mentioned on behalf of the respondent about the need to get the permit amended in order to allow for the increased capacity imposed by Rule 137 and provision of Section 48 (3) (xxi) regarding the variation of the conditions of the permit need not detain us for long because under the new Section 59 (2), as amended by Act 56 of 1969, the holder of a permit may, with the permission of the authority by which the permit was granted replace any vehicle covered by the permit by any other vehicle of the same nature. Under Rule 131 the procedure for replacing any vehicle covered by a permit by a vehicle of a different type or of a different capacity is also made clearly very simple and where it is of the same type or capacity the variation has to be granted within a week. We are also of opinion that the power conferred by Section 70 of the Act is wide enough to enable the making of the impugned Rule.9. The validity of the Rule at present has to be considered not merely from the point of view of the effect it has on a particular individual like the respondent. It has to be looked at from the point of view of the generality of the motor vehicles operators as well as the public. We have shown above that the vehicles with the minimum capacity available in this country can carry 35 passengers and if, as is alleged by the respondent, the average number of passengers in buses over this route is only 25 the proper thing to do in due course is to reduce the number of vehicles plying on this route. Otherwise, it would mean unnecessary waste of valuable transport space and facility. Buses so released could be used elsewhere to much greater advantage to the travelling public. There are many areas and many routes crying for transport facilities and they would be better served. We are unable to place any weight on the basis of an argument which affects one or two individuals, where by insisting upon this provision of a minimum seating capacity the larger public interest will be served. If it causes some inconvenience to a few individuals like the respondent they have got to face the situation. It appears from the additional affidavit filed by the petitioner (respondent herein) that he has got four buses running between Doddaballapur and Tumkur If it is found that the average number of passengers is only 25, the proper thing to do would be for him to cut down his buses on this route from four to three. In that case there can be no question of his suffering any losses or his being affected in any way in the matter of his carrying on his business.10. Though it is not in evidence it may be presumed that the cost of operation of a bus whether it is provided with 30 or 40 seats may not be very much different and there will be the additional facility available to the public if the bus has more seats. Moreover, as traffic grows, as it has a tendency to grow everywhere; the public will be better served. We are unable to accept the contention that the Rule providing for minimum number of seats is, intended to secure more revenue indirectly. The State can do it directly by increasing the rate of tax. It is really a rule intended for the ? benefit of the travelling public. We see no reason not to accept the statement made on behalf of the State that the passenger traffic on every route in the State has increased by leaps and bounds, that generally it was found that the stage carriage operators were carrying passengers in excess of the seating capacity specified in the Registration Certificate and the permit to the serious inconvenience and discomfort of the travelling public in addition to causing loss of revenue to the State, and it was with a view to eliminate the above evils that the impugned Rule has been framed.11. We are unable to agree with the High Court that as usually there are only regulations regarding the maximum number of seats, any regulation regarding the minimum number of seats being very uncommon has to be specially defended. We have shown above that the regulation is really in the interest of the general travailing public. Nor are we able to agree with the High Court that the State has not taken into account the prevailing conditions in the country with regard to the manufacture and availability of bus chassis. The minimum number of seats insisted upon depends upon the chassis. In this very case itself as we have seen the respondent really wants to provide 30 seats in the chassis which can provide 40 seats. It is not necessary to say anything regarding the luxury buses which were considered by the High Court because that matter was not argued before us. Apparently the State has decided to make the necessary provision in this regard. Stage carriage operators exclusively in cities and towns form a class by themselves and the exemption in their case has a direct relation to the objective sought to be achieved. There is- no question here of any arbitrary or excessive invasion of the respondents rights. The Rule is one of general application which can be justified as being in the interest of the general travelling public.
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lesser number of seats is a waste of valuable transportation facility. Even on this route there are 14 buses plying between the two points in addition to longer distance buses, of which the stage between Doddaballapur and Tumkur forms a section. So it cannot be said that the demand here is as little as is urged on behalf of the respondent. There is no reason to disbelieve the averment made on behalf of the State on this point.7. The difference in taxation between a bus which carries 30 passengers and a bus carrying 40 passengers is about R. 4001per quarter or Rs. 1600/per year whereas the difference is Rs. 225/per quarter between a bus carrying 30 and one carrying 35 passengers. That is because only five standing passengers are allowed in a bus with a carrying capacity of 30 and 10 standing passengers are allowed in a bus with a carrying capacity of 40 and above. The tax payable in respect of standing passengers is Rs. 10 per quarter. The tax payable under the Mysore Motor Vehicles (Taxation on Passengers and Goods) Act, l961 need not detain us for long because under that Act the operator is enabled to pass on the tax to the passengers.8. The difficulty mentioned on behalf of the respondent about the need to get the permit amended in order to allow for the increased capacity imposed by Rule 137 and provision of Section 48 (3) (xxi) regarding the variation of the conditions of the permit need not detain us for long because under the new Section 59 (2), as amended by Act 56 of 1969, the holder of a permit may, with the permission of the authority by which the permit was granted replace any vehicle covered by the permit by any other vehicle of the same nature. Under Rule 131 the procedure for replacing any vehicle covered by a permit by a vehicle of a different type or of a different capacity is also made clearly very simple and where it is of the same type or capacity the variation has to be granted within a week. We are also of opinion that the power conferred by Section 70 of the Act is wide enough to enable the making of the impugned Rule.9. The validity of the Rule at present has to be considered not merely from the point of view of the effect it has on a particular individual like the respondent. It has to be looked at from the point of view of the generality of the motor vehicles operators as well as the public. We have shown above that the vehicles with the minimum capacity available in this country can carry 35 passengers and if, as is alleged by the respondent, the average number of passengers in buses over this route is only 25 the proper thing to do in due course is to reduce the number of vehicles plying on this route. Otherwise, it would mean unnecessary waste of valuable transport space and facility. Buses so released could be used elsewhere to much greater advantage to the travelling public. There are many areas and many routes crying for transport facilities and they would be better served. We are unable to place any weight on the basis of an argument which affects one or two individuals, where by insisting upon this provision of a minimum seating capacity the larger public interest will be served. If it causes some inconvenience to a few individuals like the respondent they have got to face the situation. It appears from the additional affidavit filed by the petitioner (respondent herein) that he has got four buses running between Doddaballapur and Tumkur If it is found that the average number of passengers is only 25, the proper thing to do would be for him to cut down his buses on this route from four to three. In that case there can be no question of his suffering any losses or his being affected in any way in the matter of his carrying on hissee no reason not to accept the statement made on behalf of the State that the passenger traffic on every route in the State has increased by leaps and bounds, that generally it was found that the stage carriage operators were carrying passengers in excess of the seating capacity specified in the Registration Certificate and the permit to the serious inconvenience and discomfort of the travelling public in addition to causing loss of revenue to the State, and it was with a view to eliminate the above evils that the impugned Rule has been framed.11. We are unable to agree with the High Court that as usually there are only regulations regarding the maximum number of seats, any regulation regarding the minimum number of seats being very uncommon has to be specially defended. We have shown above that the regulation is really in the interest of the general travailing public. Nor are we able to agree with the High Court that the State has not taken into account the prevailing conditions in the country with regard to the manufacture and availability of bus chassis. The minimum number of seats insisted upon depends upon the chassis. In this very case itself as we have seen the respondent really wants to provide 30 seats in the chassis which can provide 40 seats. It is not necessary to say anything regarding the luxury buses which were considered by the High Court because that matter was not argued before us. Apparently the State has decided to make the necessary provision in this regard. Stage carriage operators exclusively in cities and towns form a class by themselves and the exemption in their case has a direct relation to the objective sought to be achieved. There isno question here of any arbitrary or excessive invasion of the respondents rights. The Rule is one of general application which can be justified as being in the interest of the general travelling public.
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Jasbhai Motibhai Desai Vs. Roshan Kumar and Others | the same words as used in Sec. 8A, then also, the appellant cannot, in the circumstances of this case, be regarded as a person aggrieved having the requisite legal capacity to invoke certiorari jurisdiction. The Act and the Rules recognise a special interest of persons residing, or concerned with any institution such as a school, temple, mosque etc. located within a distance of 200 yards of the site on which a cinema house is proposed to be constructed. The appellant does not fall within the category of such persons having a special interest in the locality. It is not his case that his cinema house is situated anywhere near the site in question, or that he has any peculiar interest in his personal, fiduciary or representative capacity in any school, temple etc. situated in the vicinity of the said site. It cannot therefore be said that the appellant is a person aggrieved on account of his having a particular and substantial interest of his own in the subject matter of the litigation, beyond the general interest of the public. Moreover the appellant could not be said to have been, in fact, aggrieved. As already noticed, he, despite adequate opportunity, never lodged any objection with the District Magistrate, nor went in revision before the State Government. Thus the present case is not in line with the decisions which are within the ratio of Queen v, Justices of Surrey (supra). 42. Having seen that the appellant has no standing to complain of injury, actual or potential, to any statutory right or interest, we pass on to consider whether any of his rights or interests, recognised by the general law, has been infringed as a result of the grant of No-objection Certificate to the respondents ? Here, again, the answer must be in the negative. 43. In Paragraph 7 of the writ petition, he has stated his cause of action, thus: The petitioner submits that .. he owns a cinema theatre in Mehmadabad which has about a small population of 15000 persons as stated above and there is no scope for more than one cinema theatre in the town. He has, there fore, a commercial interest in seeing to it that other persons are not granted a no-objection certificate in violation of law.Thus, in substance, the appellants stand is that the setting up of a rival cinema house in the town will adversely affect his monopolistic commercial interest, causing pecuniary harm and loss of business from competition. Such harm or Loss is not wrongful in the eye of law, because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity. Juridically, harm of this description is called demnum sine injuria, the term injuria being here used in its true sense of an act contrary to law(Salmond on Jurisprudence by Fitz-Gerald. p. 357 para 85.). The reason why the law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large. 44. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore he is not a person aggrieved and has no locus standi to challenge the grant of the No-objection Certificate. 45. It is true that, in the ultimate analysis, the jurisdiction under Article 226 in general, and certiorari in particular, is discretionary. But in a country like India where writ petitions are instituted in the High Courts by the thousand, many of them frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction, must be insisted upon. The broad guide lines indicated by us, coupled with other well established self-devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc., can go a long way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money. While a Procrustean approach should be avoided, as a rule the Court should not interfere at the instance of a stranger unless there are exceptional circumstances involving a grave miscarriage of justice having an adverse impact on public interests. Assuming that the appellant is a stranger, and not a busybody, then also, there are no exceptional circumstance s in the present case which would justify the issue of a writ of certiorari at his instance. On the contrary, the result of the exercise of these discretionary powers, in his favour, will, on balance, be against public policy. It will eliminate healthy competition in this business which is so essential to raise commercial morality; it will tend to perpetuate the appellants monopoly of cinema business in the town; and above all, it will, in effect, seriously injure the fundament al rights of respondents 1 and 2, which they have under article 19(1)(g) of the Constitution, to carry on trade or business subject to reasonable restrictions imposed by law. 46. The instant case falls well-high within the ratio of this Courts decision in Rice and Flour Mills v. N. T. Gowda ([1970] S.C.R. 846.), wherein it was held that a rice mill-owner has no locus standi to challenge under Article 226, the setting up of a new rice-mill by another even if such setting up be in contravention of s. 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958 because no right vested in such an applicant is infringed. | 0[ds]The expression aggrieved person denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of rigid, exact and comprehensive definition. At best, its features can be described in a broad, tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioners interest, and the nature and extent of the prejudice or injury suffered by him. E nglish Courts have sometimes put a restricted and sometimes a wide construction on the expression aggrieved person. However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or standing to invoke certiorari jurisdiction. We will first take up that line of cases in which an aggrieved person has been held to be one who has a more particular or peculiar interest of his own beyond that of the general public, in seeing that the law is properly administered. The leading case in this line in Queen v. Justices of Surrey([1870] S B. 466.) decided as far back as 1870. There, on the application by the highway board the Justices made certificates that certain portions of three roads were unnecessary. As a result, it was ordered that the roads should cease to be repaired by the parishes.16. The ratio of the decision in Queen v. Justices of Surrey (supra) was followed in King v. Groom and ors. Ex Parte([1901] 2 K. B. 157.). There, the parties were rivals in the liquor trade. The applicants (brewers) had persistently objected to the jurisdiction of the justices to grant the ` license to one J. K. White in a particular month. It was held that the applicants had a sufficient interest in the matter to enable them to invoke certiorari jurisdiction.17. A distinguishing feature of this case was that unlike the appellants in the present case who did not, despite public notice, raise any objection before the District Magistrate to the grant of the No-objection Certificate, the brewers were persistently raising objections in proceedings before the Justices at every stage. The law gave them a right to object and to see that the licensing was done in accordance with law. They were seriously prejudiced in the exercise of that right by the act of usurpation of the jurisdiction on the part of the Justices.32. This Court has laid down in a number of decisions that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a personal or individual right in the subject matter of the application, though (1) the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. In other words, as a general rule, infringement of some legal rig ht or prejudice to some legal interest in hearing the petitioner is necessary to give him a locus standi in the matter [See The State of orissa v. Madan Gopal Rungta([1952] S.C.R.28.); Calcutta . Gas Co. v. The State of West Bengal([1962] Supp.3 S.C.R. 1.); Ram Umeshwari Suthoo v. Membe r, Board of Revenue, orissa([1967] 1, S.C. Appeals 413.); Gadda Venkateshwara Rao v. Government of Andhra Pradesh(A.I.R. 1966 S.C.828-[1966] 2 S.C.R.172.); State of orissa v. Rajasaheb Chandanmall(A.T.R.1972 S.C.2112.); Dr. Satyanarayana Sinha v. M/s. S. Lal &Co.(A.I.R.1973 S.C.2720-(1974) I S.C.R 615.)]33. The expression ordinarily indicates that this is not a cast-iron rule. It is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, r even though he has no proprietary or even a fiduciary interest in the subject- matter. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject matter of the proceedings will be covered by this rule. The principles enunciated in the English cases noticed above, are not inconsistent with it.35. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) person aggrieved; (ii) stranger; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold36. The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of persons aggrieved. In the grey outer-circle the. bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outerzone may not be persons aggrieved37. To distinguish such applicants from strangers, among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered.38. Now let us apply these tests to the case in hand. The Act and the Rules with which we are concerned, are not designed to set norms of moral or professional conduct for the community at large or even a section thereof. They only regulate the exercise of private rights of an individual to carry on a particular business on his property. In this context, the expression person aggrieved must receive a strict construction.The answer in the circumstances of the case must necessarily be in the negative40. The Act and the Rules do not confer any substantive justiciable right on a rival in cinema trade, apart from the option in common with the rest of the public, to lodge an objection in response to the notice published under Rule 4. The appellant did not avail of this option. He did not lodge any objection in response to the notice, the due publication of which was not d enied. No explanation has been given as to why he did not prefer any objection to the grant of the Objection Certificate before the District Magistrate or the Government. Even if he had objected before the District Magistrate and failed, the Act would not give him a right of appeal. Section 8A of the Act confers a right of appeal to the State Government, only on any person aggrieved by an order of a licensing authority refusing to grant a license, or revoking or suspending any licence under section 8. Obviously, the appellant was not a person aggrieved within the contemplation of Section 8A.41. Section 8B of the Act provides that the State Government may either of its own motion, or upon an application made byan aggrieved person, call for and examine the record of any order made by a licensing authority under this Act, and pass such order thereon as it thinks just and proper. Assuming that the scope of the words aggrieved person in Section 8B is wider than the ambit of the same words as used in Sec. 8A, then also, the appellant cannot, in the circumstances of this case, be regarded as a person aggrieved having the requisite legal capacity to invoke certiorari jurisdiction. The Act and the Rules recognise a special interest of persons residing, or concerned with any institution such as a school, temple, mosque etc. located within a distance of 200 yards of the site on which a cinema house is proposed to be constructed. The appellant does not fall within the category of such persons having a special interest in the locality. It is not his case that his cinema house is situated anywhere near the site in question, or that he has any peculiar interest in his personal, fiduciary or representative capacity in any school, temple etc. situated in the vicinity of the said site. It cannot therefore be said that the appellant is a person aggrieved on account of his having a particular and substantial interest of his own in the subject matter of the litigation, beyond the general interest of the public. Moreover the appellant could not be said to have been, in fact, aggrieved. As already noticed, he, despite adequate opportunity, never lodged any objection with the District Magistrate, nor went in revision before the State Government. Thus the present case is not in line with the decisions which are within the ratio of Queen v, Justices of Surrey (supra)42. Having seen that the appellant has no standing to complain of injury, actual or potential, to any statutory right or interest, we pass on to consider whether any of his rights or interests, recognised by the general law, has been infringed as a result of the grant of No-objection Certificate to the respondents ? Here, again, the answer must be in the negative.44. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore he is not a person aggrieved and has no locus standi to challenge the grant of the No-objection Certificate45. It is true that, in the ultimate analysis, the jurisdiction under Article 226 in general, and certiorari in particular, is discretionary. But in a country like India where writ petitions are instituted in the High Courts by the thousand, many of them frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction, must be insisted upon. The broad guide lines indicated by us, coupled with other well established self-devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc., can go a long way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money. While a Procrustean approach should be avoided, as a rule the Court should not interfere at the instance of a stranger unless there are exceptional circumstances involving a grave miscarriage of justice having an adverse impact on public interests. Assuming that the appellant is a stranger, and not a busybody, then also, there are no exceptional circumstance s in the present case which would justify the issue of a writ of certiorari at his instance. On the contrary, the result of the exercise of these discretionary powers, in his favour, will, on balance, be against public policy. It will eliminate healthy competition in this business which is so essential to raise commercial morality; it will tend to perpetuate the appellants monopoly of cinema business in the town; and above all, it will, in effect, seriously injure the fundament al rights of respondents 1 and 2, which they have under article 19(1)(g) of the Constitution, to carry on trade or business subject to reasonable restrictions imposed by law.46. The instant case falls well-high within the ratio of this Courts decision in Rice and Flour Mills v. N. T. Gowda ([1970] S.C.R. 846.), wherein it was held that a rice mill-owner has no locus standi to challenge under Article 226, the setting up of a new rice-mill by another even if such setting up be in contravention of s. 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958 because no right vested in such an applicant is infringed. | 0 | 7,535 | 2,423 | ### 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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the same words as used in Sec. 8A, then also, the appellant cannot, in the circumstances of this case, be regarded as a person aggrieved having the requisite legal capacity to invoke certiorari jurisdiction. The Act and the Rules recognise a special interest of persons residing, or concerned with any institution such as a school, temple, mosque etc. located within a distance of 200 yards of the site on which a cinema house is proposed to be constructed. The appellant does not fall within the category of such persons having a special interest in the locality. It is not his case that his cinema house is situated anywhere near the site in question, or that he has any peculiar interest in his personal, fiduciary or representative capacity in any school, temple etc. situated in the vicinity of the said site. It cannot therefore be said that the appellant is a person aggrieved on account of his having a particular and substantial interest of his own in the subject matter of the litigation, beyond the general interest of the public. Moreover the appellant could not be said to have been, in fact, aggrieved. As already noticed, he, despite adequate opportunity, never lodged any objection with the District Magistrate, nor went in revision before the State Government. Thus the present case is not in line with the decisions which are within the ratio of Queen v, Justices of Surrey (supra). 42. Having seen that the appellant has no standing to complain of injury, actual or potential, to any statutory right or interest, we pass on to consider whether any of his rights or interests, recognised by the general law, has been infringed as a result of the grant of No-objection Certificate to the respondents ? Here, again, the answer must be in the negative. 43. In Paragraph 7 of the writ petition, he has stated his cause of action, thus: The petitioner submits that .. he owns a cinema theatre in Mehmadabad which has about a small population of 15000 persons as stated above and there is no scope for more than one cinema theatre in the town. He has, there fore, a commercial interest in seeing to it that other persons are not granted a no-objection certificate in violation of law.Thus, in substance, the appellants stand is that the setting up of a rival cinema house in the town will adversely affect his monopolistic commercial interest, causing pecuniary harm and loss of business from competition. Such harm or Loss is not wrongful in the eye of law, because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity. Juridically, harm of this description is called demnum sine injuria, the term injuria being here used in its true sense of an act contrary to law(Salmond on Jurisprudence by Fitz-Gerald. p. 357 para 85.). The reason why the law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large. 44. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore he is not a person aggrieved and has no locus standi to challenge the grant of the No-objection Certificate. 45. It is true that, in the ultimate analysis, the jurisdiction under Article 226 in general, and certiorari in particular, is discretionary. But in a country like India where writ petitions are instituted in the High Courts by the thousand, many of them frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction, must be insisted upon. The broad guide lines indicated by us, coupled with other well established self-devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc., can go a long way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money. While a Procrustean approach should be avoided, as a rule the Court should not interfere at the instance of a stranger unless there are exceptional circumstances involving a grave miscarriage of justice having an adverse impact on public interests. Assuming that the appellant is a stranger, and not a busybody, then also, there are no exceptional circumstance s in the present case which would justify the issue of a writ of certiorari at his instance. On the contrary, the result of the exercise of these discretionary powers, in his favour, will, on balance, be against public policy. It will eliminate healthy competition in this business which is so essential to raise commercial morality; it will tend to perpetuate the appellants monopoly of cinema business in the town; and above all, it will, in effect, seriously injure the fundament al rights of respondents 1 and 2, which they have under article 19(1)(g) of the Constitution, to carry on trade or business subject to reasonable restrictions imposed by law. 46. The instant case falls well-high within the ratio of this Courts decision in Rice and Flour Mills v. N. T. Gowda ([1970] S.C.R. 846.), wherein it was held that a rice mill-owner has no locus standi to challenge under Article 226, the setting up of a new rice-mill by another even if such setting up be in contravention of s. 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958 because no right vested in such an applicant is infringed.
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from the option in common with the rest of the public, to lodge an objection in response to the notice published under Rule 4. The appellant did not avail of this option. He did not lodge any objection in response to the notice, the due publication of which was not d enied. No explanation has been given as to why he did not prefer any objection to the grant of the Objection Certificate before the District Magistrate or the Government. Even if he had objected before the District Magistrate and failed, the Act would not give him a right of appeal. Section 8A of the Act confers a right of appeal to the State Government, only on any person aggrieved by an order of a licensing authority refusing to grant a license, or revoking or suspending any licence under section 8. Obviously, the appellant was not a person aggrieved within the contemplation of Section 8A.41. Section 8B of the Act provides that the State Government may either of its own motion, or upon an application made byan aggrieved person, call for and examine the record of any order made by a licensing authority under this Act, and pass such order thereon as it thinks just and proper. Assuming that the scope of the words aggrieved person in Section 8B is wider than the ambit of the same words as used in Sec. 8A, then also, the appellant cannot, in the circumstances of this case, be regarded as a person aggrieved having the requisite legal capacity to invoke certiorari jurisdiction. The Act and the Rules recognise a special interest of persons residing, or concerned with any institution such as a school, temple, mosque etc. located within a distance of 200 yards of the site on which a cinema house is proposed to be constructed. The appellant does not fall within the category of such persons having a special interest in the locality. It is not his case that his cinema house is situated anywhere near the site in question, or that he has any peculiar interest in his personal, fiduciary or representative capacity in any school, temple etc. situated in the vicinity of the said site. It cannot therefore be said that the appellant is a person aggrieved on account of his having a particular and substantial interest of his own in the subject matter of the litigation, beyond the general interest of the public. Moreover the appellant could not be said to have been, in fact, aggrieved. As already noticed, he, despite adequate opportunity, never lodged any objection with the District Magistrate, nor went in revision before the State Government. Thus the present case is not in line with the decisions which are within the ratio of Queen v, Justices of Surrey (supra)42. Having seen that the appellant has no standing to complain of injury, actual or potential, to any statutory right or interest, we pass on to consider whether any of his rights or interests, recognised by the general law, has been infringed as a result of the grant of No-objection Certificate to the respondents ? Here, again, the answer must be in the negative.44. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore he is not a person aggrieved and has no locus standi to challenge the grant of the No-objection Certificate45. It is true that, in the ultimate analysis, the jurisdiction under Article 226 in general, and certiorari in particular, is discretionary. But in a country like India where writ petitions are instituted in the High Courts by the thousand, many of them frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction, must be insisted upon. The broad guide lines indicated by us, coupled with other well established self-devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc., can go a long way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money. While a Procrustean approach should be avoided, as a rule the Court should not interfere at the instance of a stranger unless there are exceptional circumstances involving a grave miscarriage of justice having an adverse impact on public interests. Assuming that the appellant is a stranger, and not a busybody, then also, there are no exceptional circumstance s in the present case which would justify the issue of a writ of certiorari at his instance. On the contrary, the result of the exercise of these discretionary powers, in his favour, will, on balance, be against public policy. It will eliminate healthy competition in this business which is so essential to raise commercial morality; it will tend to perpetuate the appellants monopoly of cinema business in the town; and above all, it will, in effect, seriously injure the fundament al rights of respondents 1 and 2, which they have under article 19(1)(g) of the Constitution, to carry on trade or business subject to reasonable restrictions imposed by law.46. The instant case falls well-high within the ratio of this Courts decision in Rice and Flour Mills v. N. T. Gowda ([1970] S.C.R. 846.), wherein it was held that a rice mill-owner has no locus standi to challenge under Article 226, the setting up of a new rice-mill by another even if such setting up be in contravention of s. 8(3)(c) of the Rice Milling Industry (Regulation) Act, 1958 because no right vested in such an applicant is infringed.
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V.Chandrasekaran Vs. Administrative Officer | in RC No. 8222/95/F5, which is purported to have been issued by one K.Muthu, Special Tahsildar (Land Acquisition), and observed that the said proceeding itself stood cancelled and somehow a xerox copy of the said proceeding was obtained by the appellants and they utilised the same to secure permission for sanctioning their plan of construction of flats on the said land. Thus, the appellant have played fraud upon the authorities in order to obtain the said sanction. Even as per the RC No. 8222/95/F5, it is evident that the possession of the suit land was taken over ages ago and therefore, the said suit land was the subject matter of the earlier litigation. 33. The High Court also recorded findings to the effect that the appellants have “managed”, not only to obtain certain orders from the department, but have also misused the process of the court to achieve a sinister design. The court further took note that one of the appellants had filed an additional affidavit before the High Court in a writ petition by way of which, had attempted to mislead the court through furnishing of false information. It has even been admitted at the Bar, that the letter dated 7.7.2005 which was placed on the record by the appellants before the High Court, was in fact, a forged document. 34. The appellants have not approached the court with clean hands, and are therefore, not entitled for any relief. Whenever a person approaches a Court of Equity, in the exercise of its extraordinary jurisdiction, it is expected that he will approach the said court not only with clean hands but also with a clean mind, a clean heart and clean objectives. Thus, he who seeks equity must do equity. The legal maxim “Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem”, means that it is a law of nature that one should not be enriched by causing loss or injury to another. (Vide: The Ramjas Foundation & Ors. v. Union of India & Ors., AIR 1993 SC 852 ; Nooruddin v. (Dr.) K.L. Anand, (1995) 1 SCC 242 ; and Ramniklal N. Bhutta & Anr. v. State of Maharashtra & Ors., AIR 1997 SC 1236 ). 35. The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court. 36. In Dalip Singh v. State of U.P. & Ors., (2010) 2 SCC 114 , this Court noticed an altogether new creed of litigants, that is, dishonest litigants and went on to strongly deprecate their conduct by observing that, the truth constitutes an integral part of the justice delivery system. The quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in the course of court proceedings. A litigant who attempts to pollute the stream of justice, or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. 37. The truth should be the guiding star in the entire judicial process. “Every trial is a voyage of discovery in which truth is the quest”. An action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings. (Vide: Ritesh Tewari & Anr. v. State of Uttar Pradesh & Ors., (2010) 10 SCC 677 ; and Amar Singh v. Union of India, (2011) 7 SCC 69 ). 38. In Maria Margarida Sequeria Fernandes & Ors. v. Erasmo Jack de Sequeria (dead), (2012) 5 SCC 370 ), this Court taking note of its earlier judgment in Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249 held: “False claims and defences are really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimised to a large extent.” The Court further observed that wrongdoers must be denied profit from their frivolous litigation, and that they should be prevented from introducing and relying upon, false pleadings and forged or fabricated documents in the records furnished by them to the court. 39. In view of the above, the appellants have disentitled themselves for any equitable relief. 40. Section 16-A has been added to the Act by the State Amendment Act, 1996, and the same imposes a complete restriction on the sale of acquired land by the tenure holder. In case the land is transferred in contravention of these provisions, the Government may, by way of an order, declare the transfer to be null and void, and on such declaration, the land shall, as penalty, be forfeited to, and vest in, the Revenue Department of the Government, free from all encumbrances. In view of the above, we are of the considered opinion that the sale deeds in favour of the appellants are void and unenforceable.41. In such a fact-situation, we fail to understand how the appellants came to possess the suit land which had been vested in the State ages ago, in the years 1983 and 1986. Such a course is not possible without the collusion of the officers of the State/Board.42. After considering the entire material on record, | 1[ds]30. In the instant case, the tenure holders/person-interested neither filed objections under Section 5-A of the Act, nor have they challenged the land acquisition proceedings, so far as the suit land is concerned, instead they chose to withdraw the compensation awarded in 1983 and 1986; after the expiry of about three decades and hence, they cannot be permitted to challenge the acquisition proceedings on any ground whatsoever. The appellants cannot claim title/relief better than what the original vendors were entitled to.31. In fact, the appellants have claimed reliefs in the writ petitions with respect to not just the suit land but also in relation to the land which was the subject matter of an earlier litigation by their predecessors-in-interest. We fail to understand for what purpose the relief of quashing the acquisition proceedings has been sought when, in respect of the said land, the proceedings already stood quashed.Section 16-A has been added to the Act by the State Amendment Act, 1996, and the same imposes a complete restriction on the sale of acquired land by the tenure holder. In case the land is transferred in contravention of these provisions, the Government may, by way of an order, declare the transfer to be null and void, and on such declaration, the land shall, as penalty, be forfeited to, and vest in, the Revenue Department of the Government, free from all encumbrances. In view of the above, we are of the considered opinion that the sale deeds in favour of the appellants are void and unenforceable.41. In such a fact-situation, we fail to understand how the appellants came to possess the suit land which had been vested in the State ages ago, in the years 1983 and 1986. Such a course is not possible without the collusion of the officers of the State/Board. | 1 | 7,132 | 340 | ### Instruction:
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in RC No. 8222/95/F5, which is purported to have been issued by one K.Muthu, Special Tahsildar (Land Acquisition), and observed that the said proceeding itself stood cancelled and somehow a xerox copy of the said proceeding was obtained by the appellants and they utilised the same to secure permission for sanctioning their plan of construction of flats on the said land. Thus, the appellant have played fraud upon the authorities in order to obtain the said sanction. Even as per the RC No. 8222/95/F5, it is evident that the possession of the suit land was taken over ages ago and therefore, the said suit land was the subject matter of the earlier litigation. 33. The High Court also recorded findings to the effect that the appellants have “managed”, not only to obtain certain orders from the department, but have also misused the process of the court to achieve a sinister design. The court further took note that one of the appellants had filed an additional affidavit before the High Court in a writ petition by way of which, had attempted to mislead the court through furnishing of false information. It has even been admitted at the Bar, that the letter dated 7.7.2005 which was placed on the record by the appellants before the High Court, was in fact, a forged document. 34. The appellants have not approached the court with clean hands, and are therefore, not entitled for any relief. Whenever a person approaches a Court of Equity, in the exercise of its extraordinary jurisdiction, it is expected that he will approach the said court not only with clean hands but also with a clean mind, a clean heart and clean objectives. Thus, he who seeks equity must do equity. The legal maxim “Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem”, means that it is a law of nature that one should not be enriched by causing loss or injury to another. (Vide: The Ramjas Foundation & Ors. v. Union of India & Ors., AIR 1993 SC 852 ; Nooruddin v. (Dr.) K.L. Anand, (1995) 1 SCC 242 ; and Ramniklal N. Bhutta & Anr. v. State of Maharashtra & Ors., AIR 1997 SC 1236 ). 35. The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court. 36. In Dalip Singh v. State of U.P. & Ors., (2010) 2 SCC 114 , this Court noticed an altogether new creed of litigants, that is, dishonest litigants and went on to strongly deprecate their conduct by observing that, the truth constitutes an integral part of the justice delivery system. The quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in the course of court proceedings. A litigant who attempts to pollute the stream of justice, or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. 37. The truth should be the guiding star in the entire judicial process. “Every trial is a voyage of discovery in which truth is the quest”. An action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings. (Vide: Ritesh Tewari & Anr. v. State of Uttar Pradesh & Ors., (2010) 10 SCC 677 ; and Amar Singh v. Union of India, (2011) 7 SCC 69 ). 38. In Maria Margarida Sequeria Fernandes & Ors. v. Erasmo Jack de Sequeria (dead), (2012) 5 SCC 370 ), this Court taking note of its earlier judgment in Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249 held: “False claims and defences are really serious problems with real estate litigation, predominantly because of ever-escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimised to a large extent.” The Court further observed that wrongdoers must be denied profit from their frivolous litigation, and that they should be prevented from introducing and relying upon, false pleadings and forged or fabricated documents in the records furnished by them to the court. 39. In view of the above, the appellants have disentitled themselves for any equitable relief. 40. Section 16-A has been added to the Act by the State Amendment Act, 1996, and the same imposes a complete restriction on the sale of acquired land by the tenure holder. In case the land is transferred in contravention of these provisions, the Government may, by way of an order, declare the transfer to be null and void, and on such declaration, the land shall, as penalty, be forfeited to, and vest in, the Revenue Department of the Government, free from all encumbrances. In view of the above, we are of the considered opinion that the sale deeds in favour of the appellants are void and unenforceable.41. In such a fact-situation, we fail to understand how the appellants came to possess the suit land which had been vested in the State ages ago, in the years 1983 and 1986. Such a course is not possible without the collusion of the officers of the State/Board.42. After considering the entire material on record,
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30. In the instant case, the tenure holders/person-interested neither filed objections under Section 5-A of the Act, nor have they challenged the land acquisition proceedings, so far as the suit land is concerned, instead they chose to withdraw the compensation awarded in 1983 and 1986; after the expiry of about three decades and hence, they cannot be permitted to challenge the acquisition proceedings on any ground whatsoever. The appellants cannot claim title/relief better than what the original vendors were entitled to.31. In fact, the appellants have claimed reliefs in the writ petitions with respect to not just the suit land but also in relation to the land which was the subject matter of an earlier litigation by their predecessors-in-interest. We fail to understand for what purpose the relief of quashing the acquisition proceedings has been sought when, in respect of the said land, the proceedings already stood quashed.Section 16-A has been added to the Act by the State Amendment Act, 1996, and the same imposes a complete restriction on the sale of acquired land by the tenure holder. In case the land is transferred in contravention of these provisions, the Government may, by way of an order, declare the transfer to be null and void, and on such declaration, the land shall, as penalty, be forfeited to, and vest in, the Revenue Department of the Government, free from all encumbrances. In view of the above, we are of the considered opinion that the sale deeds in favour of the appellants are void and unenforceable.41. In such a fact-situation, we fail to understand how the appellants came to possess the suit land which had been vested in the State ages ago, in the years 1983 and 1986. Such a course is not possible without the collusion of the officers of the State/Board.
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K. Manickchand & Ors Vs. Elias Saleh Mohamed Salt & Ors | original loans. It is, therefore clear that, on the plain language of Section 17 of the Act, the High Court was right in holding that the aggregate of the principal amounts of the original loans was only Rs. 37,971.50 P. and not Rs. 44,000/- and consequently, in awarding arrears of interest only to the extent of the same amount and not a larger amount.4. On the second question, we are unable to agree with the view of the High Court that the arrears of interest mentioned in Section 17 of the Act mean interest calculated up to the date fixed for redemption.At the same time, we are also unable to accept the submission made on behalf of the appellants that the arrears of interest in this section mean arrears of interest up to the date of the suit. It is to be noticed that the section is in the from of a directive to a Court not to pass a decree on account of arrears of interest for a sum greater than the principal of the original loan. This language clearly gives an indication of the intention of Legislature. Obviously, the directive is to be carried out by the Court at the time of passing the decree and, consequently, it would at that time that the Court will see how much it is awarding for arrears of interest. The maximum prescribed for the arrears of interest must, therefore, be held to be the maximum amount in respect of interest payable upto the date of the decree when the Court carries out the directive laid down in this section.In the present case, the trial Court passed the decree on the 27th March, 1952 and, consequently, the amount of Rs. 37,971.50 P. awarded as arrears of interest must be the arrears of interest due up to that date. The High Court, in our opinion, was not correct in holding that these arrears of interest will cover interest due up to the date fixed for redemption by the High Court.5. In this connection, learned Counsel for the respondents urged that the arrears of interest envisaged by Section 17 of the Act should be held to include interest due up to the date of the decree by the High Court because that is the effective decree granting interest to the mortgagees; but this argument overlooks the principle of law that the decree of an appellate Court takes effect from the date of the decree of the original Court. In this case, therefore, even though the High Court passed the appellate decree at a later date, that decree has to be deemed to have come into effect from 27th March, 1952 which was the date of the decree of the trial Court, so that no question can arise of holding that the arrears of interest under Section 17 of the Act must be computed up to the date on which the High Court passed the decree.6. The further point that arose was as to the interest which the appellants could claim after the date of the decree, viz., 27th March, 1952, on the amount decreed. On behalf of the appellants, reliance was placed on Order 34, Rule 11 of the Code of Civil Procedure and it was urged that interest should be allowed after that date in accordance with the provisions of that rule. The High Court has expressed the opinion that, interest is allowed under Rule 11 of Order 34, C. P. C., it would be in conflict with Section 17 of the Act but we are unable to see any such conflict.Section 17 of the Act confines itself to laying down the maximum of arrears of interest to be allowed up to the date of the decree and is not concerned with the interest that is to be allowed for the period thereafter. Admittedly, the Code of Civil Procedure was applicable to this suit and, consequently, interest subsequent to the date of the decree had to be awarded in accordance with Order 34, Rule 11, C. P. C. Under Rule 11 (a) (i), interest would be payable on the principal amount found or declared due on the mortgage, from the date of the decree up to the date fixed for payment at the rate payable on the principal, or, where no such rate is fixed at such rate as the Court may deem reasonable. In this case, the date of the decree by the trial Court was 27th March, 1952, while the date fixed for payment became 19th March, 1959 as a result of the decree of the High Court. The interest for this period has to be calculated in accordance with Rule 11 (a) (1) of Order 34, C. P. C., on the principal amount of Rs. 37,97 1.50 P. As regards the rate, it is true that, under the mortgage-deeds, the interest was payable at the rate of 1 per cent per mensem; but under the provisions the Act read with the provisions of the Usurious Loans Act (Mysore Act IX of 1923), the fair interested payable on the loan would be at the rate of 9 per cent per annum and it is at this rate that the interest must be calculated on this principal amount for this period. In addition, under Rule 11 (a) (ii) of Order 34, C. P. C., interest at the rate of 6 per cent per annum has to be allowed on the amount decreed for costs, charges and expenses incurred by the appellants up to the date of the preliminary decree. A further direction that is necessary is that interest under R. 11 (b) of Order 34, C. P. C., will be payable up to the date of realisation or actual payment on the aggregate of the two principal sums just mentioned at the rate of 6 per cent per annum which must be deemed to be reasonable as interest at that rate is ordinarily awarded in all decrees in respect of future periods. | 1[ds]3. So far as the first point raised by learned Counsel is concerned, it appears to us that it is totally misconceived, because the language of Section 17 of the Act plainly justifies the view taken by the High Court. Section 17 in prescribing the maximum amount of arrears of interest to be allowed, refers to "the principal of the original loan" and not "the principal of the loan". If the latter expression had been used, it could have been argued in the present case that the sums of Rs. 20,000/- and Rs. 24,000/-, which purported to be the principal amounts of the two loans evidenced by the two mortgage-deeds in suit, were the principal amounts of the loans to be taken into account in working out the maximum amount of interest permissible under Section 17 of the Act.The expression "the principal of the original loan" makes it clear that, in determining the maximum amount of arrears of interest allowable, the Court must go behind the transaction of the loan and find out what was the actual cash originally advanced as principal and ignore all interest that may have been added subsequently to that original advanced in order to make up the consideration for the loans in suit.In the present case, therefore the High Court was justified in looking at the transaction prior to the two mortgage-deeds to find out what were the actual cash amounts originally advanced which, together with interest and after adjustment of accounts formed the principal amounts for the two mortgage-deeds. It was admitted by Counsel for both parties before us that the figures accepted by the High Court as the principal amounts of the two loans are correct, if the original cash advances are treated as the principal amounts of the original loans. It is, therefore clear that, on the plain language of Section 17 of the Act, the High Court was right in holding that the aggregate of the principal amounts of the original loans was only Rs. 37,971.50 P. and not Rs. 44,000/- and consequently, in awarding arrears of interest only to the extent of the same amount and not a larger amount.4. On the second question, we are unable to agree with the view of the High Court that the arrears of interest mentioned in Section 17 of the Act mean interest calculated up to the date fixed for redemption.At the same time, we are also unable to accept the submission made on behalf of the appellants that the arrears of interest in this section mean arrears of interest up to the date of the suit. It is to be noticed that the section is in the from of a directive to a Court not to pass a decree on account of arrears of interest for a sum greater than the principal of the original loan. This language clearly gives an indication of the intention of Legislature. Obviously, the directive is to be carried out by the Court at the time of passing the decree and, consequently, it would at that time that the Court will see how much it is awarding for arrears of interest. The maximum prescribed for the arrears of interest must, therefore, be held to be the maximum amount in respect of interest payable upto the date of the decree when the Court carries out the directive laid down in this section.In the present case, the trial Court passed the decree on the 27th March, 1952 and, consequently, the amount of Rs. 37,971.50 P. awarded as arrears of interest must be the arrears of interest due up to that date. The High Court, in our opinion, was not correct in holding that these arrears of interest will cover interest due up to the date fixed for redemption by the High Court.The further point that arose was as to the interest which the appellants could claim after the date of the decree, viz., 27th March, 1952, on the amount decreed. On behalf of the appellants, reliance was placed on Order 34, Rule 11 of theCode of Civil Procedure and it was urged that interest should be allowed after that date in accordance with the provisions of that rule. The High Court has expressed the opinion that, interest is allowed under Rule 11 of Order 34, C. P. C., it would be in conflict with Section 17 of the Act but we are unable to see any such conflict.Section 17 of the Act confines itself to laying down the maximum of arrears of interest to be allowed up to the date of the decree and is not concerned with the interest that is to be allowed for the period thereafter. Admittedly, theCode of Civil Procedure was applicable to this suit and, consequently, interest subsequent to the date of the decree had to be awarded in accordance with Order 34, Rule 11, C. P. C. Under Rule 11 (a) (i), interest would be payable on the principal amount found or declared due on the mortgage, from the date of the decree up to the date fixed for payment at the rate payable on the principal, or, where no such rate is fixed at such rate as the Court may deem reasonable. In this case, the date of the decree by the trial Court was 27th March, 1952, while the date fixed for payment became 19th March, 1959 as a result of the decree of the High Court. The interest for this period has to be calculated in accordance with Rule 11 (a) (1) of Order 34, C. P. C., on the principal amount of Rs. 37,97 1.50 P. As regards the rate, it is true that, under the mortgage-deeds, the interest was payable at the rate of 1 per cent per mensem; but under the provisions the Act read with the provisions of the Usurious Loans Act (Mysore Act IX of 1923), the fair interested payable on the loan would be at the rate of 9 per cent per annum and it is at this rate that the interest must be calculated on this principal amount for this period. In addition, under Rule 11 (a) (ii) of Order 34, C. P. C., interest at the rate of 6 per cent per annum has to be allowed on the amount decreed for costs, charges and expenses incurred by the appellants up to the date of the preliminary decree. A further direction that is necessary is that interest under R. 11 (b) of Order 34, C. P. C., will be payable up to the date of realisation or actual payment on the aggregate of the two principal sums just mentioned at the rate of 6 per cent per annum which must be deemed to be reasonable as interest at that rate is ordinarily awarded in all decrees in respect of future periods. | 1 | 2,261 | 1,253 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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original loans. It is, therefore clear that, on the plain language of Section 17 of the Act, the High Court was right in holding that the aggregate of the principal amounts of the original loans was only Rs. 37,971.50 P. and not Rs. 44,000/- and consequently, in awarding arrears of interest only to the extent of the same amount and not a larger amount.4. On the second question, we are unable to agree with the view of the High Court that the arrears of interest mentioned in Section 17 of the Act mean interest calculated up to the date fixed for redemption.At the same time, we are also unable to accept the submission made on behalf of the appellants that the arrears of interest in this section mean arrears of interest up to the date of the suit. It is to be noticed that the section is in the from of a directive to a Court not to pass a decree on account of arrears of interest for a sum greater than the principal of the original loan. This language clearly gives an indication of the intention of Legislature. Obviously, the directive is to be carried out by the Court at the time of passing the decree and, consequently, it would at that time that the Court will see how much it is awarding for arrears of interest. The maximum prescribed for the arrears of interest must, therefore, be held to be the maximum amount in respect of interest payable upto the date of the decree when the Court carries out the directive laid down in this section.In the present case, the trial Court passed the decree on the 27th March, 1952 and, consequently, the amount of Rs. 37,971.50 P. awarded as arrears of interest must be the arrears of interest due up to that date. The High Court, in our opinion, was not correct in holding that these arrears of interest will cover interest due up to the date fixed for redemption by the High Court.5. In this connection, learned Counsel for the respondents urged that the arrears of interest envisaged by Section 17 of the Act should be held to include interest due up to the date of the decree by the High Court because that is the effective decree granting interest to the mortgagees; but this argument overlooks the principle of law that the decree of an appellate Court takes effect from the date of the decree of the original Court. In this case, therefore, even though the High Court passed the appellate decree at a later date, that decree has to be deemed to have come into effect from 27th March, 1952 which was the date of the decree of the trial Court, so that no question can arise of holding that the arrears of interest under Section 17 of the Act must be computed up to the date on which the High Court passed the decree.6. The further point that arose was as to the interest which the appellants could claim after the date of the decree, viz., 27th March, 1952, on the amount decreed. On behalf of the appellants, reliance was placed on Order 34, Rule 11 of the Code of Civil Procedure and it was urged that interest should be allowed after that date in accordance with the provisions of that rule. The High Court has expressed the opinion that, interest is allowed under Rule 11 of Order 34, C. P. C., it would be in conflict with Section 17 of the Act but we are unable to see any such conflict.Section 17 of the Act confines itself to laying down the maximum of arrears of interest to be allowed up to the date of the decree and is not concerned with the interest that is to be allowed for the period thereafter. Admittedly, the Code of Civil Procedure was applicable to this suit and, consequently, interest subsequent to the date of the decree had to be awarded in accordance with Order 34, Rule 11, C. P. C. Under Rule 11 (a) (i), interest would be payable on the principal amount found or declared due on the mortgage, from the date of the decree up to the date fixed for payment at the rate payable on the principal, or, where no such rate is fixed at such rate as the Court may deem reasonable. In this case, the date of the decree by the trial Court was 27th March, 1952, while the date fixed for payment became 19th March, 1959 as a result of the decree of the High Court. The interest for this period has to be calculated in accordance with Rule 11 (a) (1) of Order 34, C. P. C., on the principal amount of Rs. 37,97 1.50 P. As regards the rate, it is true that, under the mortgage-deeds, the interest was payable at the rate of 1 per cent per mensem; but under the provisions the Act read with the provisions of the Usurious Loans Act (Mysore Act IX of 1923), the fair interested payable on the loan would be at the rate of 9 per cent per annum and it is at this rate that the interest must be calculated on this principal amount for this period. In addition, under Rule 11 (a) (ii) of Order 34, C. P. C., interest at the rate of 6 per cent per annum has to be allowed on the amount decreed for costs, charges and expenses incurred by the appellants up to the date of the preliminary decree. A further direction that is necessary is that interest under R. 11 (b) of Order 34, C. P. C., will be payable up to the date of realisation or actual payment on the aggregate of the two principal sums just mentioned at the rate of 6 per cent per annum which must be deemed to be reasonable as interest at that rate is ordinarily awarded in all decrees in respect of future periods.
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expression "the principal of the original loan" makes it clear that, in determining the maximum amount of arrears of interest allowable, the Court must go behind the transaction of the loan and find out what was the actual cash originally advanced as principal and ignore all interest that may have been added subsequently to that original advanced in order to make up the consideration for the loans in suit.In the present case, therefore the High Court was justified in looking at the transaction prior to the two mortgage-deeds to find out what were the actual cash amounts originally advanced which, together with interest and after adjustment of accounts formed the principal amounts for the two mortgage-deeds. It was admitted by Counsel for both parties before us that the figures accepted by the High Court as the principal amounts of the two loans are correct, if the original cash advances are treated as the principal amounts of the original loans. It is, therefore clear that, on the plain language of Section 17 of the Act, the High Court was right in holding that the aggregate of the principal amounts of the original loans was only Rs. 37,971.50 P. and not Rs. 44,000/- and consequently, in awarding arrears of interest only to the extent of the same amount and not a larger amount.4. On the second question, we are unable to agree with the view of the High Court that the arrears of interest mentioned in Section 17 of the Act mean interest calculated up to the date fixed for redemption.At the same time, we are also unable to accept the submission made on behalf of the appellants that the arrears of interest in this section mean arrears of interest up to the date of the suit. It is to be noticed that the section is in the from of a directive to a Court not to pass a decree on account of arrears of interest for a sum greater than the principal of the original loan. This language clearly gives an indication of the intention of Legislature. Obviously, the directive is to be carried out by the Court at the time of passing the decree and, consequently, it would at that time that the Court will see how much it is awarding for arrears of interest. The maximum prescribed for the arrears of interest must, therefore, be held to be the maximum amount in respect of interest payable upto the date of the decree when the Court carries out the directive laid down in this section.In the present case, the trial Court passed the decree on the 27th March, 1952 and, consequently, the amount of Rs. 37,971.50 P. awarded as arrears of interest must be the arrears of interest due up to that date. The High Court, in our opinion, was not correct in holding that these arrears of interest will cover interest due up to the date fixed for redemption by the High Court.The further point that arose was as to the interest which the appellants could claim after the date of the decree, viz., 27th March, 1952, on the amount decreed. On behalf of the appellants, reliance was placed on Order 34, Rule 11 of theCode of Civil Procedure and it was urged that interest should be allowed after that date in accordance with the provisions of that rule. The High Court has expressed the opinion that, interest is allowed under Rule 11 of Order 34, C. P. C., it would be in conflict with Section 17 of the Act but we are unable to see any such conflict.Section 17 of the Act confines itself to laying down the maximum of arrears of interest to be allowed up to the date of the decree and is not concerned with the interest that is to be allowed for the period thereafter. Admittedly, theCode of Civil Procedure was applicable to this suit and, consequently, interest subsequent to the date of the decree had to be awarded in accordance with Order 34, Rule 11, C. P. C. Under Rule 11 (a) (i), interest would be payable on the principal amount found or declared due on the mortgage, from the date of the decree up to the date fixed for payment at the rate payable on the principal, or, where no such rate is fixed at such rate as the Court may deem reasonable. In this case, the date of the decree by the trial Court was 27th March, 1952, while the date fixed for payment became 19th March, 1959 as a result of the decree of the High Court. The interest for this period has to be calculated in accordance with Rule 11 (a) (1) of Order 34, C. P. C., on the principal amount of Rs. 37,97 1.50 P. As regards the rate, it is true that, under the mortgage-deeds, the interest was payable at the rate of 1 per cent per mensem; but under the provisions the Act read with the provisions of the Usurious Loans Act (Mysore Act IX of 1923), the fair interested payable on the loan would be at the rate of 9 per cent per annum and it is at this rate that the interest must be calculated on this principal amount for this period. In addition, under Rule 11 (a) (ii) of Order 34, C. P. C., interest at the rate of 6 per cent per annum has to be allowed on the amount decreed for costs, charges and expenses incurred by the appellants up to the date of the preliminary decree. A further direction that is necessary is that interest under R. 11 (b) of Order 34, C. P. C., will be payable up to the date of realisation or actual payment on the aggregate of the two principal sums just mentioned at the rate of 6 per cent per annum which must be deemed to be reasonable as interest at that rate is ordinarily awarded in all decrees in respect of future periods.
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Indian Overseas Bank and Ors Vs. Rattan Singh | Kurian Joseph, J.1. Leave granted.2. The Appellants are before this Court aggrieved by the judgment of the High Court dated 21.02.2014. The case pertains to the application of Voluntary Retirement Scheme (for short VRS) by the Respondent. The stand taken by the Division Bench is that since the Respondent withdrew the offer for VRS prior to the communication of the acceptance, there is no VRS in the eye of law and, therefore, the High Court set aside the termination of the Respondent on VRS and ordered reinstatement with all consequential benefits.3. Prima facie, we find it difficult to appreciate the stand taken by the High Court. The scheme of VRS varies from institution to institution. In the case of the Appellants it is specifically stipulated that once an officer/employee exercises the option it will not be open for him/her to withdraw the request made for voluntary retirement under the scheme after having exercised such option. The option once exercised is irrevocable.4. Be that as it may, when the matter was being heard, we sought the assistance of Mr. Kailash Vasudev, learned senior Counsel, as to whether an amicable settlement of the dispute leaving the question of law open can be arrived at, since it is a case of only one employee, in whose favour there is a judgment of the High Court. Mr. Kailash Vasudev, learned senior Counsel, has made certain suggestions. Mr. Gourab Benerji, learned senior Counsel appearing for the Appellants submits that being a financial institution, it may not be possible for the Bank to accept the suggestions by way of a volunteered settlement from the Bank.5. After having heard Mr. D.K. Garg, learned Counsel appearing for the Respondent, we are of the view that having regard to the peculiar facts of this case, this is a fit case to invoke our jurisdiction Under Article 142 of the Constitution of India, particularly in view of the fact that the Respondent has been a beneficiary of the judgment of the High Court and he is the only person involved in this dispute. | 1[ds]3. Prima facie, we find it difficult to appreciate the stand taken by the High Court. The scheme of VRS varies from institution to institution. In the case of the Appellants it is specifically stipulated that once an officer/employee exercises the option it will not be open for him/her to withdraw the request made for voluntary retirement under the scheme after having exercised such option. The option once exercised is irrevocable5. After having heard Mr. D.K. Garg, learned Counsel appearing for the Respondent, we are of the view that having regard to the peculiar facts of this case, this is a fit case to invoke our jurisdiction Under Article 142 of the Constitution of India, particularly in view of the fact that the Respondent has been a beneficiary of the judgment of the High Court and he is the only person involved in this dispute. | 1 | 378 | 161 | ### Instruction:
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Kurian Joseph, J.1. Leave granted.2. The Appellants are before this Court aggrieved by the judgment of the High Court dated 21.02.2014. The case pertains to the application of Voluntary Retirement Scheme (for short VRS) by the Respondent. The stand taken by the Division Bench is that since the Respondent withdrew the offer for VRS prior to the communication of the acceptance, there is no VRS in the eye of law and, therefore, the High Court set aside the termination of the Respondent on VRS and ordered reinstatement with all consequential benefits.3. Prima facie, we find it difficult to appreciate the stand taken by the High Court. The scheme of VRS varies from institution to institution. In the case of the Appellants it is specifically stipulated that once an officer/employee exercises the option it will not be open for him/her to withdraw the request made for voluntary retirement under the scheme after having exercised such option. The option once exercised is irrevocable.4. Be that as it may, when the matter was being heard, we sought the assistance of Mr. Kailash Vasudev, learned senior Counsel, as to whether an amicable settlement of the dispute leaving the question of law open can be arrived at, since it is a case of only one employee, in whose favour there is a judgment of the High Court. Mr. Kailash Vasudev, learned senior Counsel, has made certain suggestions. Mr. Gourab Benerji, learned senior Counsel appearing for the Appellants submits that being a financial institution, it may not be possible for the Bank to accept the suggestions by way of a volunteered settlement from the Bank.5. After having heard Mr. D.K. Garg, learned Counsel appearing for the Respondent, we are of the view that having regard to the peculiar facts of this case, this is a fit case to invoke our jurisdiction Under Article 142 of the Constitution of India, particularly in view of the fact that the Respondent has been a beneficiary of the judgment of the High Court and he is the only person involved in this dispute.
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3. Prima facie, we find it difficult to appreciate the stand taken by the High Court. The scheme of VRS varies from institution to institution. In the case of the Appellants it is specifically stipulated that once an officer/employee exercises the option it will not be open for him/her to withdraw the request made for voluntary retirement under the scheme after having exercised such option. The option once exercised is irrevocable5. After having heard Mr. D.K. Garg, learned Counsel appearing for the Respondent, we are of the view that having regard to the peculiar facts of this case, this is a fit case to invoke our jurisdiction Under Article 142 of the Constitution of India, particularly in view of the fact that the Respondent has been a beneficiary of the judgment of the High Court and he is the only person involved in this dispute.
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Baijnath Kedia Vs. State Of Bihar & Ors | and not vice versa. Therefore, this amendment was subject to the overriding power to Parliament as declared in Act 67 of 1957 in S. 15. Entry 18 of the State list, therefore, is of no help.24. Mr. Lal Narain Sinha next contended that the provisions of Sections 4-14 do not envisage control of the Union which is a condition precedent to the ousting of the jurisdiction under entry 23. Obviously Mr. Lal Narain Sinha reads Union as equivalent to Union Government. This is erroneous. Union consists of its three limbs, namely, Parliament, Union Government and the Union Judiciary. Here the control is being exercised by Parliament, the legislative organ of the Union and that is also controlled by the Union. By giving the power to the State Government to make rules, the control of Union is not negatived. In fact, it establishes that the Union is exercising the control.In view of the two rulings of this Court referred to earlier we must hold that by enacting S. 15 of Act 67 of 1957 the Union has taken all the power to itself and authorised the State Government to make rules for the regulation of leases. By the declaration and the enactment of S. 15 the whole of the field relating to minor minerals came within the jurisdiction of Parliament and no scope was left for the enactment of the second proviso to S. 10 in the Land Reforms Act. The enactment of the Proviso was, therefore, without jurisdiction.25. This leaves for consideration the second sub-rule added to Rule 20 in December, 1964 by the State Government.It will be noticed that the rule as it stood previously applied prospectively to all leases which came to be executed after the promulgation of the rules. The second sub-rule made applicable those provisions to all leases subsisting on the date of the promulgation of the rules.The short question is whether the rules could operate on leases in existence prior to their enactment without the authority of a competent legislature. Vested rights cannot be taken away except under authority of law and mere rule-making power without the support of a legislative enactment is not capable of achieving such an end. There being two legislatures to consider, namely, Parliament and the State Legislature we have first to decide which legislature would be competent to grant such power.26. We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with the provisions of Act 67 of 1957, particularly S. 15. We have also held that entry 23 of List II was to that extent cut down by entry 54 of List I. The whole of the topic of minor minerals became a Union subject. The Union Parliament allowed rules to be made but that did not recreate a scope for legislation at the State level. Therefore, if the old leases were to be modified a legislative enactment by Parliament on the lines of S. 16 of Act 67 of 1957 was necessary. The place of such a law could not be taken by legislation by the State Legislature as it purported to do by enacting the second Proviso to S. 10 of the Land Reforms Act. It will further be seen that Parliament in S. 4 of Act 67 of 1957 created an express bar although S. 4 was not applicable to minor minerals. Whether S. 4 was intended to apply to minor minerals as well or any part of it applies to minor minerals are questions we cannot consider in view of the clear declaration in Section 14 of Act 67 of 1957 that the provisions of Ss. 4-13 (inclusive) do not apply. Therefore, there does not exist any prohibition such as is to be found in Sec. 4 (1), Proviso in respect of minor minerals. Although Section 16 applies to minor minerals it only permits modification of mining leases granted before October 25, 1949. In regard to leases of minor minerals executed between this date and December 1964 when R. 20 (1) was enacted, there is no provision of law which enables the terms of existing leases to be altered. A mere rule is not sufficient.27. Faced with this difficulty Mr. Lal Narain Sinha attempted to claim power for the second Proviso to S. 10 of the Land Reforms Act from entry 18 of List II, a contention we have rejected. He also attempted to find a field for enactment by the State Legislature for the said proviso. This argument was extremely ingenious and needs separate notice.28. The contention was that modification of existing leases was a separate topic altogether and was not covered by S. 15 of Act 67 of 1957. Therefore if Parliament had not said anything on the subject the field was open to the State Legislature. The other side pointed to the words and for purposes connected therewith in S. 15 and contended that those words were sufficiently wide to take in modification of leases.Mr. Lal Narain Sinhas argument is unfortunately not tenable in view of the two rulings of this Court. On the basis of those rulings we have held that the entire legislative field in relation to minor minerals had been withdrawn from the State Legislature. We have also held that vested rights could only be taken away by law made by a competent legislature. Mere rule-making power of the State Government was not able to reach them. The authority to do so must, therefore, have emanated for Parliament. The existing provision related to regulation of leases and matters connected therewith to be granted in future and not for alteration of the terms of leases which were in existence before Act 67 of 1957. For that special legislative provision was necessary. As no such parliamentary law had been passed the second sub-rule to R. 20 was ineffective. It could not derive sustenance from the second Proviso to S. 10 (2) of the Land Reforms Act since that proviso was not validity enacted.29. | 1[ds]Although these supplementary arguments were raised it is obvious that they can arise according as the two main arguments are allowed or disallowed. Therefore it is necessary to address ourselves to the first argument that the legislative competence to enact the amendment to S. 10 of the Reforms Acts was wanting. As the amendment was made after Act 67 of 1957 we have to consider the position in relation to it. Entry 54 of the Union List speaks both of Regulation of mines and minerals Development and entry 23 is subject to entry 54.It is open to Parliament to declared that it is expedient in the public interest that the control should rest in Central Government. To what extent such a declaration can go is for Parliament to determine and this must be commensurate with public interest. Once this declaration is made and the extent laid down ,the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament. Any legislation by the State after such declaration and trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative competence of the State Legislature.This proposition is also self-evident that no attempt was rightly made to contradict it. There are also two decisions of this Court reported in the Hingir-Rampur Coal Co. Ltd. v. State of Orissa 1961-2 SCR 537 = (AIR 1961 SCR 459) and State of Orissa v. M. A. Tulloch and Co. 1964-4 SCR 461 = (AIR 1964 SC 1284 ) in which the matter is discussed. The only dispute, therefore, can be to what extent the declaration by Parliament leaves any scope for legislation by the State Legislature. If the impugned legislation falls within the ambit of such scope it will be valid; if outside it, then it must be declaredabolition of the rights of intermediaries in the mines and vesting these rights as lessors in the State Government was a topic connected with land and land tenures. But after the mining leases stood between the State Government and the lessees, any attempt to regulate those mining leases will fall not in entry 18 but in entry 23 even though the regulation incidentally touches land.The pith and substance of the amendment to S. 10 of the Reforms Act falls within entry 23 although it incidentally touches land and not vice versa. Therefore, this amendment was subject to the overriding power to Parliament as declared in Act 67 of 1957 in S. 15. Entry 18 of the State list, therefore, is of noMr. Lal Narain Sinha reads Union as equivalent to Union Government. This is erroneous. Union consists of its three limbs, namely, Parliament, Union Government and the Union Judiciary. Here the control is being exercised by Parliament, the legislative organ of the Union and that is also controlled by the Union. By giving the power to the State Government to make rules, the control of Union is not negatived. In fact, it establishes that the Union is exercising the control.In view of the two rulings of this Court referred to earlier we must hold that by enacting S. 15 of Act 67 of 1957 the Union has taken all the power to itself and authorised the State Government to make rules for the regulation of leases. By the declaration and the enactment of S. 15 the whole of the field relating to minor minerals came within the jurisdiction of Parliament and no scope was left for the enactment of the second proviso to S. 10 in the Land Reforms Act. The enactment of the Proviso was, therefore, without jurisdiction.We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with the provisions of Act 67 of 1957, particularly S. 15. We have also held that entry 23 of List II was to that extent cut down by entry 54 of List I. The whole of the topic of minor minerals became a Union subject. The Union Parliament allowed rules to be made but that did not recreate a scope for legislation at the State level. Therefore, if the old leases were to be modified a legislative enactment by Parliament on the lines of S. 16 of Act 67 of 1957 was necessary. The place of such a law could not be taken by legislation by the State Legislature as it purported to do by enacting the second Proviso to S. 10 of the Land Reforms Act. It will further be seen that Parliament in S. 4 of Act 67 of 1957 created an express bar although S. 4 was not applicable to minor minerals. Whether S. 4 was intended to apply to minor minerals as well or any part of it applies to minor minerals are questions we cannot consider in view of the clear declaration in Section 14 of Act 67 of 1957 that the provisions of Ss. 4-13 (inclusive) do not apply. Therefore, there does not exist any prohibition such as is to be found in Sec. 4 (1), Proviso in respect of minor minerals. Although Section 16 applies to minor minerals it only permits modification of mining leases granted before October 25, 1949. In regard to leases of minor minerals executed between this date and December 1964 when R. 20 (1) was enacted, there is no provision of law which enables the terms of existing leases to be altered. A mere rule is not sufficient.Lal Narain Sinhas argument is unfortunately not tenable in view of the two rulings of this Court. On the basis of those rulings we have held that the entire legislative field in relation to minor minerals had been withdrawn from the State Legislature. We have also held that vested rights could only be taken away by law made by a competent legislature. Mere rule-making power of the State Government was not able to reach them. The authority to do so must, therefore, have emanated for Parliament. The existing provision related to regulation of leases and matters connected therewith to be granted in future and not for alteration of the terms of leases which were in existence before Act 67 of 1957. For that special legislative provision was necessary. As no such parliamentary law had been passed the second sub-rule to R. 20 was ineffective. It could not derive sustenance from the second Proviso to S. 10 (2) of the Land Reforms Act since that proviso was not validity enacted. | 1 | 7,153 | 1,163 | ### Instruction:
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and not vice versa. Therefore, this amendment was subject to the overriding power to Parliament as declared in Act 67 of 1957 in S. 15. Entry 18 of the State list, therefore, is of no help.24. Mr. Lal Narain Sinha next contended that the provisions of Sections 4-14 do not envisage control of the Union which is a condition precedent to the ousting of the jurisdiction under entry 23. Obviously Mr. Lal Narain Sinha reads Union as equivalent to Union Government. This is erroneous. Union consists of its three limbs, namely, Parliament, Union Government and the Union Judiciary. Here the control is being exercised by Parliament, the legislative organ of the Union and that is also controlled by the Union. By giving the power to the State Government to make rules, the control of Union is not negatived. In fact, it establishes that the Union is exercising the control.In view of the two rulings of this Court referred to earlier we must hold that by enacting S. 15 of Act 67 of 1957 the Union has taken all the power to itself and authorised the State Government to make rules for the regulation of leases. By the declaration and the enactment of S. 15 the whole of the field relating to minor minerals came within the jurisdiction of Parliament and no scope was left for the enactment of the second proviso to S. 10 in the Land Reforms Act. The enactment of the Proviso was, therefore, without jurisdiction.25. This leaves for consideration the second sub-rule added to Rule 20 in December, 1964 by the State Government.It will be noticed that the rule as it stood previously applied prospectively to all leases which came to be executed after the promulgation of the rules. The second sub-rule made applicable those provisions to all leases subsisting on the date of the promulgation of the rules.The short question is whether the rules could operate on leases in existence prior to their enactment without the authority of a competent legislature. Vested rights cannot be taken away except under authority of law and mere rule-making power without the support of a legislative enactment is not capable of achieving such an end. There being two legislatures to consider, namely, Parliament and the State Legislature we have first to decide which legislature would be competent to grant such power.26. We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with the provisions of Act 67 of 1957, particularly S. 15. We have also held that entry 23 of List II was to that extent cut down by entry 54 of List I. The whole of the topic of minor minerals became a Union subject. The Union Parliament allowed rules to be made but that did not recreate a scope for legislation at the State level. Therefore, if the old leases were to be modified a legislative enactment by Parliament on the lines of S. 16 of Act 67 of 1957 was necessary. The place of such a law could not be taken by legislation by the State Legislature as it purported to do by enacting the second Proviso to S. 10 of the Land Reforms Act. It will further be seen that Parliament in S. 4 of Act 67 of 1957 created an express bar although S. 4 was not applicable to minor minerals. Whether S. 4 was intended to apply to minor minerals as well or any part of it applies to minor minerals are questions we cannot consider in view of the clear declaration in Section 14 of Act 67 of 1957 that the provisions of Ss. 4-13 (inclusive) do not apply. Therefore, there does not exist any prohibition such as is to be found in Sec. 4 (1), Proviso in respect of minor minerals. Although Section 16 applies to minor minerals it only permits modification of mining leases granted before October 25, 1949. In regard to leases of minor minerals executed between this date and December 1964 when R. 20 (1) was enacted, there is no provision of law which enables the terms of existing leases to be altered. A mere rule is not sufficient.27. Faced with this difficulty Mr. Lal Narain Sinha attempted to claim power for the second Proviso to S. 10 of the Land Reforms Act from entry 18 of List II, a contention we have rejected. He also attempted to find a field for enactment by the State Legislature for the said proviso. This argument was extremely ingenious and needs separate notice.28. The contention was that modification of existing leases was a separate topic altogether and was not covered by S. 15 of Act 67 of 1957. Therefore if Parliament had not said anything on the subject the field was open to the State Legislature. The other side pointed to the words and for purposes connected therewith in S. 15 and contended that those words were sufficiently wide to take in modification of leases.Mr. Lal Narain Sinhas argument is unfortunately not tenable in view of the two rulings of this Court. On the basis of those rulings we have held that the entire legislative field in relation to minor minerals had been withdrawn from the State Legislature. We have also held that vested rights could only be taken away by law made by a competent legislature. Mere rule-making power of the State Government was not able to reach them. The authority to do so must, therefore, have emanated for Parliament. The existing provision related to regulation of leases and matters connected therewith to be granted in future and not for alteration of the terms of leases which were in existence before Act 67 of 1957. For that special legislative provision was necessary. As no such parliamentary law had been passed the second sub-rule to R. 20 was ineffective. It could not derive sustenance from the second Proviso to S. 10 (2) of the Land Reforms Act since that proviso was not validity enacted.29.
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Development and entry 23 is subject to entry 54.It is open to Parliament to declared that it is expedient in the public interest that the control should rest in Central Government. To what extent such a declaration can go is for Parliament to determine and this must be commensurate with public interest. Once this declaration is made and the extent laid down ,the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament. Any legislation by the State after such declaration and trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative competence of the State Legislature.This proposition is also self-evident that no attempt was rightly made to contradict it. There are also two decisions of this Court reported in the Hingir-Rampur Coal Co. Ltd. v. State of Orissa 1961-2 SCR 537 = (AIR 1961 SCR 459) and State of Orissa v. M. A. Tulloch and Co. 1964-4 SCR 461 = (AIR 1964 SC 1284 ) in which the matter is discussed. The only dispute, therefore, can be to what extent the declaration by Parliament leaves any scope for legislation by the State Legislature. If the impugned legislation falls within the ambit of such scope it will be valid; if outside it, then it must be declaredabolition of the rights of intermediaries in the mines and vesting these rights as lessors in the State Government was a topic connected with land and land tenures. But after the mining leases stood between the State Government and the lessees, any attempt to regulate those mining leases will fall not in entry 18 but in entry 23 even though the regulation incidentally touches land.The pith and substance of the amendment to S. 10 of the Reforms Act falls within entry 23 although it incidentally touches land and not vice versa. Therefore, this amendment was subject to the overriding power to Parliament as declared in Act 67 of 1957 in S. 15. Entry 18 of the State list, therefore, is of noMr. Lal Narain Sinha reads Union as equivalent to Union Government. This is erroneous. Union consists of its three limbs, namely, Parliament, Union Government and the Union Judiciary. Here the control is being exercised by Parliament, the legislative organ of the Union and that is also controlled by the Union. By giving the power to the State Government to make rules, the control of Union is not negatived. In fact, it establishes that the Union is exercising the control.In view of the two rulings of this Court referred to earlier we must hold that by enacting S. 15 of Act 67 of 1957 the Union has taken all the power to itself and authorised the State Government to make rules for the regulation of leases. By the declaration and the enactment of S. 15 the whole of the field relating to minor minerals came within the jurisdiction of Parliament and no scope was left for the enactment of the second proviso to S. 10 in the Land Reforms Act. The enactment of the Proviso was, therefore, without jurisdiction.We have already held that the whole of the legislative field was covered by the Parliamentary declaration read with the provisions of Act 67 of 1957, particularly S. 15. We have also held that entry 23 of List II was to that extent cut down by entry 54 of List I. The whole of the topic of minor minerals became a Union subject. The Union Parliament allowed rules to be made but that did not recreate a scope for legislation at the State level. Therefore, if the old leases were to be modified a legislative enactment by Parliament on the lines of S. 16 of Act 67 of 1957 was necessary. The place of such a law could not be taken by legislation by the State Legislature as it purported to do by enacting the second Proviso to S. 10 of the Land Reforms Act. It will further be seen that Parliament in S. 4 of Act 67 of 1957 created an express bar although S. 4 was not applicable to minor minerals. Whether S. 4 was intended to apply to minor minerals as well or any part of it applies to minor minerals are questions we cannot consider in view of the clear declaration in Section 14 of Act 67 of 1957 that the provisions of Ss. 4-13 (inclusive) do not apply. Therefore, there does not exist any prohibition such as is to be found in Sec. 4 (1), Proviso in respect of minor minerals. Although Section 16 applies to minor minerals it only permits modification of mining leases granted before October 25, 1949. In regard to leases of minor minerals executed between this date and December 1964 when R. 20 (1) was enacted, there is no provision of law which enables the terms of existing leases to be altered. A mere rule is not sufficient.Lal Narain Sinhas argument is unfortunately not tenable in view of the two rulings of this Court. On the basis of those rulings we have held that the entire legislative field in relation to minor minerals had been withdrawn from the State Legislature. We have also held that vested rights could only be taken away by law made by a competent legislature. Mere rule-making power of the State Government was not able to reach them. The authority to do so must, therefore, have emanated for Parliament. The existing provision related to regulation of leases and matters connected therewith to be granted in future and not for alteration of the terms of leases which were in existence before Act 67 of 1957. For that special legislative provision was necessary. As no such parliamentary law had been passed the second sub-rule to R. 20 was ineffective. It could not derive sustenance from the second Proviso to S. 10 (2) of the Land Reforms Act since that proviso was not validity enacted.
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Kalpanaraj Vs. Tamil Nadu State Transport Corporation | to [pic]30,000/-. Therefore, in total, the High Court awarded a total amount of [pic]5,76,000/- as compensation to the appellants- claimants. The interest rate was also reduced to 9% per annum by the High Court from 12% awarded by the Tribunal. 7. It is pertinent to note that the only available documentary evidence on record of the monthly income of the deceased is the income tax return filed by him with the Income Tax Department. The High Court was correct therefore, to determine the monthly income on the basis of the income tax return. However, the High Court erred in ascertaining the net income of the deceased as the amount to be taken into consideration for calculating compensation, in the light of the principle laid down by this Court in the case of National Insurance Company Ltd. v. Indira Srivastava and Ors. [(2008) 2 SCC 763] The relevant paragraphs of the case read as under: 14. The question came for consideration before a learned Single Judge of the Madras High Court in National Insurance Co. Ltd. v. Padmavathy and Ors. wherein it was held: 7…..Income tax, Professional tax which are deducted from the salaried person goes to the coffers of the government under specific head and there is no return. Whereas, the General Provident Fund, Special Provident Fund, L.I.C., Contribution are amounts paid specific heads and the contribution is always repayable to an employee at the time of voluntary retirement, death or for any other reason. Such contribution made by the salaried person are deferred payments and they are savings. The Supreme Court as well as various High Courts have held that the compensation payable under the Motor Vehicles Act is statutory and that the deferred payments made to the employee are contractual. Courts have held that there cannot be any deductions in the statutory compensation, if the Legal Representatives are entitled to lump sum payment under the contractual liability. If the contributions made by the employee which are otherwise savings from the salary are deducted from the gross income and only the net income is taken for computing the dependency compensation, then the Legal Representatives of the victim would lose considerable portion of the income. In view of the settled proposition of law, I am of the view, the Tribunal can make only statutory deductions such as Income tax and professional tax and any other contribution, which is not repayable by the employer, from the salary of the deceased person while determining the monthly income for computing the dependency compensation. Any contribution made by the employee during his life time, form part of the salary and they should be included in the monthly income, while computing the dependency compensation. 15. Similar view was expressed by a learned Single Judge of Andhra Pradesh High Court in S. Narayanamma and Ors. v. Secretary to Government of India, Ministry of Telecommunications and Ors. holding: 13….In this background, now we will examine the present deductions made by the tribunal from the salary of the deceased in fixing the monthly contribution of the deceased to his family. The tribunal has not even taken proper care while deducting the amounts from the salary of the deceased, at least the very nature of deductions from the salary of the deceased. My view is that the deductions made by the tribunal from the salary such as recovery of housing loan, vehicle loan, festival advance and other deductions, if any, to the benefit of the estate of the deceased cannot be deducted while computing the net monthly earnings of the deceased. These advances or loans are part of his salary. So far as House Rent Allowance is concerned, it is beneficial to the entire family of the deceased during his tenure, but for his untimely death the claimants are deprived of such benefit which they would have enjoyed if the deceased is alive. On the other hand, allowances, like Travelling Allowance, allowance for newspapers/periodicals, telephone, servant, club-fee, car maintenance etc., by virtue of his vocation need not be included in the salary while computing the net earnings of the deceased. The finding of the tribunal that the deceased was getting Rs.1,401/- as net income every month is unsustainable as the deductions made towards vehicle loan and other deductions were also taken into consideration while fixing the monthly income of the deceased. The above finding of the tribunal is contrary to the principle of just compensation enunciated by the Supreme Court in the judgment in Helens case (1 supra). The Supreme Court in Concord of India Insurance Co. v. Nirmaladevi and Ors. 1980 ACJ 55 (SC) held that determination of quantum must be liberal and not niggardly since law values life and limb in a free country in generous scales. (Emphasis laid down by this Court) 8. In the light of the principle of law laid down by this Court in the Indira Srivastava case mentioned supra, we are of the opinion that the High Court erred in making deductions under various heads to arrive at the net income instead of ascertaining the gross income of the deceased out of the annual income earned from his occupation mentioned in the income tax return submitted for the relevant financial year 1994-1995. 9. As per the Income Tax return of the financial year 1994-1995 produced on record, the deceased was earning [pic]88,660/- per annum or [pic]7330/- per month. Further, the deceased being 46 years of age at the time of death, he is entitled to 30% increase in the future prospects of income as per the legal principle laid down by this Court in Santosh Devi v. National Insurance Company Ltd. and Ors. [(2012) 6 SCC 421] 10. Also, since the deceased was 46 years of age at the time of the accident, a multiplier of 13 seems appropriate for determining the quantum of compensation as per the principle laid down by this Court in the case of Sarla Verma and Ors. v. Delhi Transport Corporation and Anr. [(2009) 6 SCC 121] | 1[ds]7. It is pertinent to note that the only available documentary evidence on record of the monthly income of the deceased is the income tax return filed by him with the Income Tax Department. The High Court was correct therefore, to determine the monthly income on the basis of the income tax return. However, the High Court erred in ascertaining the net income of the deceased as the amount to be taken into consideration for calculating compensation, in the light of the principle laid down by this Court in the case of National Insurance Company Ltd. v. Indira Srivastava and Ors. [(2008) 2 SCC 763] . In the light of the principle of law laid down by this Court in the Indira Srivastava case mentioned supra, we are of the opinion that the High Court erred in making deductions under various heads to arrive at the net income instead of ascertaining the gross income of the deceased out of the annual income earned from his occupation mentioned in the income tax return submitted for the relevant financial year 1994-19959. As per the Income Tax return of the financial year 1994-1995 produced on record, the deceased was earning [pic]88,660/- per annum or [pic]7330/- per month. Further, the deceased being 46 years of age at the time of death, he is entitled to 30% increase in the future prospects of income as per the legal principle laid down by this Court in Santosh Devi v. National Insurance Company Ltd. and Ors. [(2012) 6 SCC 421] 10. Also, since the deceased was 46 years of age at the time of the accident, a multiplier of 13 seems appropriate for determining the quantum of compensation as per the principle laid down by this Court in the case of Sarla Verma and Ors. v. Delhi Transport Corporation and Anr. [(2009) 6 SCC 121] | 1 | 1,852 | 350 | ### Instruction:
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to [pic]30,000/-. Therefore, in total, the High Court awarded a total amount of [pic]5,76,000/- as compensation to the appellants- claimants. The interest rate was also reduced to 9% per annum by the High Court from 12% awarded by the Tribunal. 7. It is pertinent to note that the only available documentary evidence on record of the monthly income of the deceased is the income tax return filed by him with the Income Tax Department. The High Court was correct therefore, to determine the monthly income on the basis of the income tax return. However, the High Court erred in ascertaining the net income of the deceased as the amount to be taken into consideration for calculating compensation, in the light of the principle laid down by this Court in the case of National Insurance Company Ltd. v. Indira Srivastava and Ors. [(2008) 2 SCC 763] The relevant paragraphs of the case read as under: 14. The question came for consideration before a learned Single Judge of the Madras High Court in National Insurance Co. Ltd. v. Padmavathy and Ors. wherein it was held: 7…..Income tax, Professional tax which are deducted from the salaried person goes to the coffers of the government under specific head and there is no return. Whereas, the General Provident Fund, Special Provident Fund, L.I.C., Contribution are amounts paid specific heads and the contribution is always repayable to an employee at the time of voluntary retirement, death or for any other reason. Such contribution made by the salaried person are deferred payments and they are savings. The Supreme Court as well as various High Courts have held that the compensation payable under the Motor Vehicles Act is statutory and that the deferred payments made to the employee are contractual. Courts have held that there cannot be any deductions in the statutory compensation, if the Legal Representatives are entitled to lump sum payment under the contractual liability. If the contributions made by the employee which are otherwise savings from the salary are deducted from the gross income and only the net income is taken for computing the dependency compensation, then the Legal Representatives of the victim would lose considerable portion of the income. In view of the settled proposition of law, I am of the view, the Tribunal can make only statutory deductions such as Income tax and professional tax and any other contribution, which is not repayable by the employer, from the salary of the deceased person while determining the monthly income for computing the dependency compensation. Any contribution made by the employee during his life time, form part of the salary and they should be included in the monthly income, while computing the dependency compensation. 15. Similar view was expressed by a learned Single Judge of Andhra Pradesh High Court in S. Narayanamma and Ors. v. Secretary to Government of India, Ministry of Telecommunications and Ors. holding: 13….In this background, now we will examine the present deductions made by the tribunal from the salary of the deceased in fixing the monthly contribution of the deceased to his family. The tribunal has not even taken proper care while deducting the amounts from the salary of the deceased, at least the very nature of deductions from the salary of the deceased. My view is that the deductions made by the tribunal from the salary such as recovery of housing loan, vehicle loan, festival advance and other deductions, if any, to the benefit of the estate of the deceased cannot be deducted while computing the net monthly earnings of the deceased. These advances or loans are part of his salary. So far as House Rent Allowance is concerned, it is beneficial to the entire family of the deceased during his tenure, but for his untimely death the claimants are deprived of such benefit which they would have enjoyed if the deceased is alive. On the other hand, allowances, like Travelling Allowance, allowance for newspapers/periodicals, telephone, servant, club-fee, car maintenance etc., by virtue of his vocation need not be included in the salary while computing the net earnings of the deceased. The finding of the tribunal that the deceased was getting Rs.1,401/- as net income every month is unsustainable as the deductions made towards vehicle loan and other deductions were also taken into consideration while fixing the monthly income of the deceased. The above finding of the tribunal is contrary to the principle of just compensation enunciated by the Supreme Court in the judgment in Helens case (1 supra). The Supreme Court in Concord of India Insurance Co. v. Nirmaladevi and Ors. 1980 ACJ 55 (SC) held that determination of quantum must be liberal and not niggardly since law values life and limb in a free country in generous scales. (Emphasis laid down by this Court) 8. In the light of the principle of law laid down by this Court in the Indira Srivastava case mentioned supra, we are of the opinion that the High Court erred in making deductions under various heads to arrive at the net income instead of ascertaining the gross income of the deceased out of the annual income earned from his occupation mentioned in the income tax return submitted for the relevant financial year 1994-1995. 9. As per the Income Tax return of the financial year 1994-1995 produced on record, the deceased was earning [pic]88,660/- per annum or [pic]7330/- per month. Further, the deceased being 46 years of age at the time of death, he is entitled to 30% increase in the future prospects of income as per the legal principle laid down by this Court in Santosh Devi v. National Insurance Company Ltd. and Ors. [(2012) 6 SCC 421] 10. Also, since the deceased was 46 years of age at the time of the accident, a multiplier of 13 seems appropriate for determining the quantum of compensation as per the principle laid down by this Court in the case of Sarla Verma and Ors. v. Delhi Transport Corporation and Anr. [(2009) 6 SCC 121]
### Response:
1
### Explanation:
7. It is pertinent to note that the only available documentary evidence on record of the monthly income of the deceased is the income tax return filed by him with the Income Tax Department. The High Court was correct therefore, to determine the monthly income on the basis of the income tax return. However, the High Court erred in ascertaining the net income of the deceased as the amount to be taken into consideration for calculating compensation, in the light of the principle laid down by this Court in the case of National Insurance Company Ltd. v. Indira Srivastava and Ors. [(2008) 2 SCC 763] . In the light of the principle of law laid down by this Court in the Indira Srivastava case mentioned supra, we are of the opinion that the High Court erred in making deductions under various heads to arrive at the net income instead of ascertaining the gross income of the deceased out of the annual income earned from his occupation mentioned in the income tax return submitted for the relevant financial year 1994-19959. As per the Income Tax return of the financial year 1994-1995 produced on record, the deceased was earning [pic]88,660/- per annum or [pic]7330/- per month. Further, the deceased being 46 years of age at the time of death, he is entitled to 30% increase in the future prospects of income as per the legal principle laid down by this Court in Santosh Devi v. National Insurance Company Ltd. and Ors. [(2012) 6 SCC 421] 10. Also, since the deceased was 46 years of age at the time of the accident, a multiplier of 13 seems appropriate for determining the quantum of compensation as per the principle laid down by this Court in the case of Sarla Verma and Ors. v. Delhi Transport Corporation and Anr. [(2009) 6 SCC 121]
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The Commissioner of Income Tax, Bombay City Vs. Abdul Sattar Haji Usman & Others | the purchase inquestion was an adventure in trade. 3. Out of the area purchased the assessee sold 48,398 sq.yds. on March 6, 1961 at the rate of R.15/- per sq.yd. The Income-tax Officer brought to tax what according to him is the profit earned by the assessee in the assessment year 1962-63 as a result of the sale effected on March 6, 1961. For determining the taxable profits he first determined the purchase price per sq. yard by dividing 10 lakhs of rupees by 1,62,825 sq. yds. The difference between the purchase price and the sale price was considered by him as the profits made and on that basis he assessed the assessee. The order of the Income-tax Officer was affirmed by the Appellate Assistant Commissioner. The Tribunal reversed the order of the Appellate Assistant Commissioner. 4. The Tribunal came to the conclusion that the method adopted by the Income-tax Officer for determining the purchase price per sq. yd. was wholly erroneous. It opined, in our opinion, rightly that there was o basis for averaging the purchase price as the different plots of land purchased were situated at different places and their quality differed. It also noted the fact that a large area of land was in the possession of the tenants and they could be evicted only at considerable cost. It further opined on the basis of the material before it that the assessee may not be able to take possession of some of the lands. Lastly, it noticed that the assessee had to spend considerable amounts on litigation to obtain possession of some of the lands purchased by him. All these aspects had been ignored both by the Income-tax Officer as well as the Appellate Assistant Commissioner. The Tribunal did not go into the question as to what could be said to be the correct purchase price of the lands sold. It opined that in an adventure like the one before us, the profit and loss can be determined only when all the lands purchased were sold. In arriving at that conclusion it relied on the decision of the Bombay High Court in In re K. H. Mody, (1940) 8 ITR 179 (Bom) . 5. Being dissatisfied with the orders of the Tribunal the Department moved the Income-tax Appellate Tribunal to refer the following question to the High Court under Section 66 (1) of the Act :- "Whether on the facts and in the circumstances of the case, the Tribunal, having held that the transaction was an adventure in the nature of trade, is correct in law in holding that the profits made by the assessee by the sale of a part of the land is not ascertainable on the date of the sale and therefore no profit can be assessed in the assessment year under consideration?" 5-A. The Tribunal rejected that application holding that the law was clear on the point and its finding is essentially a finding of fact. Aggrieved by that decision, the Department moved the High Court as mentioned earlier, under section 66 (2) of the Act. The High Court also rejected that application. 6. It is strongly urged that the Tribunal erred in not referring the question mentioned above for ascertaining the opinion of the High Court and that the High Court erred in not directing the Tribunal to submit that question for its opinion. The question of law arising for decision in this case, we were told, had been considered and decided by this Court in P. M. Mohammed Meerakhan v. Commr. of Income-tax, Kerala, (1969) 73 ITR 735 = (AIR 1969 SC 1053). In that case a question similar to the one before us came up for consideration and this Court came to the conclusion that the profits earned in any year should be separately computed and assessed in the relevant assessment year. This Court took the view that in a venture somewhat similar to the one before us, the profits are not to be computed when the entire land purchased is sold. It was further urged that if the law is as stated by the Bombay High Court. In re Modys case (supra), it would be extremely easy for an assessee to evade payment of tax.All that he need to do is not to sell a small portion of the land purchased by him. it was not denied on behalf of the Department that the method of averaging adopted by the Income-tax Officer for the purpose of finding the purchasing price of the lands sold was wholly wrong in view of the fact that the quality of the lands purchased differed from plot to plot as the plots purchased were situated in different places, and that the assessee has not been able to take possession of some of the lands.It is not known whether he will be ever able to get possession of some of the lands purchased; it was also not denied that he had to spend large sums of money in intigation for taking possession of some portions of land purchased by him. It was conceded that under these circumstances it was the duty of the Income-tax Officer to find out the real purchase price of the land sold by taking into consideration all relevant aspects and that he should have given the assessee an opportunity to place before him all the relevant material to assist him in arriving at a just conclusion as regards the purchase price of the plots of land sold. It was also not disputed that only after arriving at a proper conclusion as regards the purchase price of the lands sold the Income-tax Officer could have found out the profits or loss made by the assessee in the relevant assessment year. We are of the opinion that the question of law set out in the application of the Department did arise for consideration of the High Court and the High Court should have directed the Tribunal to submit that question for its opinion. | 1[ds]4. The Tribunal came to the conclusion that the method adopted by thex Officer for determining the purchase price per sq. yd. was wholly erroneous. It opined, in our opinion, rightly that there was o basis for averaging the purchase price as the different plots of land purchased were situated at different places and their quality differed6. It is strongly urged that the Tribunal erred in not referring the question mentioned above for ascertaining the opinion of the High Court and that the High Court erred in not directing the Tribunal to submit that question for its opinion. The question of law arising for decision in this case, we were told, had been considered and decided by this Court in P. M. Mohammed Meerakhan v. Commr. of, Kerala, (1969) 73 ITR 735 = (AIR 1969 SC. In that case a question similar to the one before us came up for consideration and this Court came to the conclusion that the profits earned in any year should be separately computed and assessed in the relevant assessment year. This Court took the view that in a venture somewhat similar to the one before us, the profits are not to be computed when the entire land purchased is sold.It was further urged that if the law is as stated by the Bombay High Court. In re Modys case (supra), it would be extremely easy for an assessee to evade payment of tax.All that he need to do is not to sell a small portion of the land purchased by him.it was not denied on behalf of the Department that the method of averaging adopted by thex Officer for the purpose of finding the purchasing price of the lands sold was wholly wrong in view of the fact that the quality of the lands purchased differed from plot to plot as the plots purchased were situated in different places, and that the assessee has not been able to take possession of some of the lands.It is not known whether he will be ever able to get possession of some of the lands purchased; it was also not denied that he had to spend large sums of money in intigation for taking possession of some portions of land purchased by him. It was conceded that under these circumstances it was the duty of thex Officer to find out the real purchase price of the land sold by taking into consideration all relevant aspects and that he should have given the assessee an opportunity to place before him all the relevant material to assist him in arriving at a just conclusion as regards the purchase price of the plots of land sold. It was also not disputed that only after arriving at a proper conclusion as regards the purchase price of the lands sold thex Officer could have found out the profits or loss made by the assessee in the relevant assessment year. We are of the opinion that the question of law set out in the application of the Department did arise for consideration of the High Court and the High Court should have directed the Tribunal to submit that question for its opinion. | 1 | 1,303 | 562 | ### Instruction:
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the purchase inquestion was an adventure in trade. 3. Out of the area purchased the assessee sold 48,398 sq.yds. on March 6, 1961 at the rate of R.15/- per sq.yd. The Income-tax Officer brought to tax what according to him is the profit earned by the assessee in the assessment year 1962-63 as a result of the sale effected on March 6, 1961. For determining the taxable profits he first determined the purchase price per sq. yard by dividing 10 lakhs of rupees by 1,62,825 sq. yds. The difference between the purchase price and the sale price was considered by him as the profits made and on that basis he assessed the assessee. The order of the Income-tax Officer was affirmed by the Appellate Assistant Commissioner. The Tribunal reversed the order of the Appellate Assistant Commissioner. 4. The Tribunal came to the conclusion that the method adopted by the Income-tax Officer for determining the purchase price per sq. yd. was wholly erroneous. It opined, in our opinion, rightly that there was o basis for averaging the purchase price as the different plots of land purchased were situated at different places and their quality differed. It also noted the fact that a large area of land was in the possession of the tenants and they could be evicted only at considerable cost. It further opined on the basis of the material before it that the assessee may not be able to take possession of some of the lands. Lastly, it noticed that the assessee had to spend considerable amounts on litigation to obtain possession of some of the lands purchased by him. All these aspects had been ignored both by the Income-tax Officer as well as the Appellate Assistant Commissioner. The Tribunal did not go into the question as to what could be said to be the correct purchase price of the lands sold. It opined that in an adventure like the one before us, the profit and loss can be determined only when all the lands purchased were sold. In arriving at that conclusion it relied on the decision of the Bombay High Court in In re K. H. Mody, (1940) 8 ITR 179 (Bom) . 5. Being dissatisfied with the orders of the Tribunal the Department moved the Income-tax Appellate Tribunal to refer the following question to the High Court under Section 66 (1) of the Act :- "Whether on the facts and in the circumstances of the case, the Tribunal, having held that the transaction was an adventure in the nature of trade, is correct in law in holding that the profits made by the assessee by the sale of a part of the land is not ascertainable on the date of the sale and therefore no profit can be assessed in the assessment year under consideration?" 5-A. The Tribunal rejected that application holding that the law was clear on the point and its finding is essentially a finding of fact. Aggrieved by that decision, the Department moved the High Court as mentioned earlier, under section 66 (2) of the Act. The High Court also rejected that application. 6. It is strongly urged that the Tribunal erred in not referring the question mentioned above for ascertaining the opinion of the High Court and that the High Court erred in not directing the Tribunal to submit that question for its opinion. The question of law arising for decision in this case, we were told, had been considered and decided by this Court in P. M. Mohammed Meerakhan v. Commr. of Income-tax, Kerala, (1969) 73 ITR 735 = (AIR 1969 SC 1053). In that case a question similar to the one before us came up for consideration and this Court came to the conclusion that the profits earned in any year should be separately computed and assessed in the relevant assessment year. This Court took the view that in a venture somewhat similar to the one before us, the profits are not to be computed when the entire land purchased is sold. It was further urged that if the law is as stated by the Bombay High Court. In re Modys case (supra), it would be extremely easy for an assessee to evade payment of tax.All that he need to do is not to sell a small portion of the land purchased by him. it was not denied on behalf of the Department that the method of averaging adopted by the Income-tax Officer for the purpose of finding the purchasing price of the lands sold was wholly wrong in view of the fact that the quality of the lands purchased differed from plot to plot as the plots purchased were situated in different places, and that the assessee has not been able to take possession of some of the lands.It is not known whether he will be ever able to get possession of some of the lands purchased; it was also not denied that he had to spend large sums of money in intigation for taking possession of some portions of land purchased by him. It was conceded that under these circumstances it was the duty of the Income-tax Officer to find out the real purchase price of the land sold by taking into consideration all relevant aspects and that he should have given the assessee an opportunity to place before him all the relevant material to assist him in arriving at a just conclusion as regards the purchase price of the plots of land sold. It was also not disputed that only after arriving at a proper conclusion as regards the purchase price of the lands sold the Income-tax Officer could have found out the profits or loss made by the assessee in the relevant assessment year. We are of the opinion that the question of law set out in the application of the Department did arise for consideration of the High Court and the High Court should have directed the Tribunal to submit that question for its opinion.
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4. The Tribunal came to the conclusion that the method adopted by thex Officer for determining the purchase price per sq. yd. was wholly erroneous. It opined, in our opinion, rightly that there was o basis for averaging the purchase price as the different plots of land purchased were situated at different places and their quality differed6. It is strongly urged that the Tribunal erred in not referring the question mentioned above for ascertaining the opinion of the High Court and that the High Court erred in not directing the Tribunal to submit that question for its opinion. The question of law arising for decision in this case, we were told, had been considered and decided by this Court in P. M. Mohammed Meerakhan v. Commr. of, Kerala, (1969) 73 ITR 735 = (AIR 1969 SC. In that case a question similar to the one before us came up for consideration and this Court came to the conclusion that the profits earned in any year should be separately computed and assessed in the relevant assessment year. This Court took the view that in a venture somewhat similar to the one before us, the profits are not to be computed when the entire land purchased is sold.It was further urged that if the law is as stated by the Bombay High Court. In re Modys case (supra), it would be extremely easy for an assessee to evade payment of tax.All that he need to do is not to sell a small portion of the land purchased by him.it was not denied on behalf of the Department that the method of averaging adopted by thex Officer for the purpose of finding the purchasing price of the lands sold was wholly wrong in view of the fact that the quality of the lands purchased differed from plot to plot as the plots purchased were situated in different places, and that the assessee has not been able to take possession of some of the lands.It is not known whether he will be ever able to get possession of some of the lands purchased; it was also not denied that he had to spend large sums of money in intigation for taking possession of some portions of land purchased by him. It was conceded that under these circumstances it was the duty of thex Officer to find out the real purchase price of the land sold by taking into consideration all relevant aspects and that he should have given the assessee an opportunity to place before him all the relevant material to assist him in arriving at a just conclusion as regards the purchase price of the plots of land sold. It was also not disputed that only after arriving at a proper conclusion as regards the purchase price of the lands sold thex Officer could have found out the profits or loss made by the assessee in the relevant assessment year. We are of the opinion that the question of law set out in the application of the Department did arise for consideration of the High Court and the High Court should have directed the Tribunal to submit that question for its opinion.
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Hardyal Prem Vs. State of Rajasthan | and a silver kada from the house of Narain but nothing was recovered from the house of Hardyal. On October 8, 1974 again the house of the appellant Prem was searched and one silver kada was recovered. On the same day the house of Hardyal was searched which led to the recovery of certain silver articles, namely, a bali (earring), silver bangles, silver rings and a silver locket. Thereafter on October 29, 1974 the house of Hardyal again was searched and certain clothes of the accused which said to have been stained with blood were recovered. All the ornaments recovered during the course of the searches are marked as Articles 1 to 6. After completion of the investigation PW 18 filed the charge-sheet 3. The trial court on the strength of the evidence adduced by the prosecution convicted the appellants and Narain under Section 302 read with 34 IPC and sentenced each of them to undergo imprisonment for life and also convicted them under Section 392 IPC and sentenced each of them to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 500. The High Court, on appeal, his confirmed the judgment of the trial court4. Admittedly there is no eye-witness to the occurrence. The prosecution rests its case only on certain pieces of circumstantial evidence to substantiate these charges levelled against these two appellants and Narain. Those circumstances are formulated in paragraph 33 of the judgment of the trial court 5. The first circumstance relied upon by the prosecution is that these appellants made an inquiry from the deceased herself about her movement which she had later on reported to her sons PWs 1 and 7 and her husband. It transpires from the evidence that this report was made by the decreased about 15 or 20 days prior to her death. This piece of evidence, in our view, cannot serve as an incriminating circumstance involving these appellants and Narain in this dastardly murder. The second piece of evidence is that of PWs 3 and 4. These two witnesses speak about the suspicious movement of these two appellants in the company of Narain on the night of occurrence at about 8 or 9 p.m. Though the investigation started even on October 2, 1974, these two witnesses who were the resident of the same locality, did not volunteer any statement at the earliest. They offered themselves as witnesses only after 3 or 4 days after the recovery of the dead body. The third piece of circumstantial evidence pressed into service is that the appellant Prem at the time of arrest was in possession of a letter Ex. P 26 written under his hand admitting that he had committed some illegal act. The courts below have strongly relied upon this circumstance as a piece of formidable evidence. In our opinion this evidence cannot be relied upon for the reasons - namely (1) that the story that Prem was carrying on a letter admitting an illegal act is highly unbelievable and (2) that the letter does not make any reference to this particular case. The other circumstantial piece of evidence relied upon by the courts below is the recovery of two weapons Exs. P 8 and P 7 from the houses of Prem and Narain respectively on a search made on October 7, 1974. These two weapons are said to have been stained with human blood but the prosecution has not satisfactorily established that the blood found on these two weapons tallied with the blood group of the deceased. Lastly we are left with the evidence relating to the recovery of the ornaments, articles 1 to 6. These ornaments are said to has been recovered from the houses of the appellants on various dates i.e. a silver kada from the house of Narain on October 7, 1974, some other silver articles from the houses of Prem and Hardyal on October 8, 1974 and the bloodstained clothes of Hardyal from his house on October 29, 1974. Though much reliance was placed on the recovery of these ornaments, we are unable to agree with the view of the courts below for more than one reason. First, in P 1, these is absolutely no description of the ornaments of the deceased which she is said to have been wearing on the date of occurrence. Secondly, these ornaments were not recovered in pursuance of any statement made by the appellants. Thirdly, though even on October 7, 1974 the houses of the appellants were searched, no ornament was recovered. Similarly no blood-stained cloth was recovered from the house of Hardyal till October 29, 1974 i.e. for nearly a month from the date of occurrence. Fourthly, these appellants and Narain though were arrested even on October 5, 1974, it seems that no effort has been made by the police either on October 5, 1974 or on October 6, 1974 to made searches of the respective houses of the accused. When these appellants and Narain had been arrested even on October 5, 1974, it is incomprehensible that the inmates of the houses of these appellants were safely keeping these ornaments which were the subject matter of robbery thereby enabling the police to recover these articles on October 8, 1974. Fifthly, these ornaments are of common pattern usually worn by the ladies in Rajasthan. Though the appellants are claiming these ornaments as belonging to them, we are unable to accept the appellants statement, in the absence of tangible evidence in support of their statements, instead hold that this piece of evidence relating to the recovery of ornaments as not at all worth accepting6. In the present case in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn by the prosecution, have not been fully and satisfactorily established beyond all reasonable doubt. In short, the evidence on the record falls short of proving the guilt of the appellants and Narain | 1[ds]5. The first circumstance relied upon by the prosecution is that these appellants made an inquiry from the deceased herself about her movement which she had later on reported to her sons PWs 1 and 7 and her husband. It transpires from the evidence that this report was made by the decreased about 15 or 20 days prior to her death. This piece of evidence, in our view, cannot serve as an incriminating circumstance involving these appellants and Narain in this dastardly murder. The second piece of evidence is that of PWs 3 and 4. These two witnesses speak about the suspicious movement of these two appellants in the company of Narain on the night of occurrence at about 8 or 9 p.m. Though the investigation started even on October 2, 1974, these two witnesses who were the resident of the same locality, did not volunteer any statement at the earliest. They offered themselves as witnesses only after 3 or 4 days after the recovery of the dead body. The third piece of circumstantial evidence pressed into service is that the appellant Prem at the time of arrest was in possession of a letter Ex. P 26 written under his hand admitting that he had committed some illegal act. The courts below have strongly relied upon this circumstance as a piece of formidable evidence. In our opinion this evidence cannot be relied upon for the reasonsnamely (1) that the story that Prem was carrying on a letter admitting an illegal act is highly unbelievable and (2) that the letter does not make any reference to this particular case. The other circumstantial piece of evidence relied upon by the courts below is the recovery of two weapons Exs. P 8 and P 7 from the houses of Prem and Narain respectively on a search made on October 7, 1974. These two weapons are said to have been stained with human blood but the prosecution has not satisfactorily established that the blood found on these two weapons tallied with the blood group of the deceased. Lastly we are left with the evidence relating to the recovery of the ornaments, articles 1 to 6. These ornaments are said to has been recovered from the houses of the appellants on various dates i.e. a silver kada from the house of Narain on October 7, 1974, some other silver articles from the houses of Prem and Hardyal on October 8, 1974 and the bloodstained clothes of Hardyal from his house on October 29, 1974. Though much reliance was placed on the recovery of these ornaments, we are unable to agree with the view of the courts below for more than one reason. First, in P 1, these is absolutely no description of the ornaments of the deceased which she is said to have been wearing on the date of occurrence. Secondly, these ornaments were not recovered in pursuance of any statement made by the appellants. Thirdly, though even on October 7, 1974 the houses of the appellants were searched, no ornament was recovered. Similarly nocloth was recovered from the house of Hardyal till October 29, 1974 i.e. for nearly a month from the date of occurrence. Fourthly, these appellants and Narain though were arrested even on October 5, 1974, it seems that no effort has been made by the police either on October 5, 1974 or on October 6, 1974 to made searches of the respective houses of the accused. When these appellants and Narain had been arrested even on October 5, 1974, it is incomprehensible that the inmates of the houses of these appellants were safely keeping these ornaments which were the subject matter of robbery thereby enabling the police to recover these articles on October 8, 1974. Fifthly, these ornaments are of common pattern usually worn by the ladies in Rajasthan. Though the appellants are claiming these ornaments as belonging to them, we are unable to accept the appellants statement, in the absence of tangible evidence in support of their statements, instead hold that this piece of evidence relating to the recovery of ornaments as not at all worth accepting6. In the present case in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn by the prosecution, have not been fully and satisfactorily established beyond all reasonable doubt. In short, the evidence on the record falls short of proving the guilt of the appellants and Narain | 1 | 1,501 | 821 | ### Instruction:
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and a silver kada from the house of Narain but nothing was recovered from the house of Hardyal. On October 8, 1974 again the house of the appellant Prem was searched and one silver kada was recovered. On the same day the house of Hardyal was searched which led to the recovery of certain silver articles, namely, a bali (earring), silver bangles, silver rings and a silver locket. Thereafter on October 29, 1974 the house of Hardyal again was searched and certain clothes of the accused which said to have been stained with blood were recovered. All the ornaments recovered during the course of the searches are marked as Articles 1 to 6. After completion of the investigation PW 18 filed the charge-sheet 3. The trial court on the strength of the evidence adduced by the prosecution convicted the appellants and Narain under Section 302 read with 34 IPC and sentenced each of them to undergo imprisonment for life and also convicted them under Section 392 IPC and sentenced each of them to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 500. The High Court, on appeal, his confirmed the judgment of the trial court4. Admittedly there is no eye-witness to the occurrence. The prosecution rests its case only on certain pieces of circumstantial evidence to substantiate these charges levelled against these two appellants and Narain. Those circumstances are formulated in paragraph 33 of the judgment of the trial court 5. The first circumstance relied upon by the prosecution is that these appellants made an inquiry from the deceased herself about her movement which she had later on reported to her sons PWs 1 and 7 and her husband. It transpires from the evidence that this report was made by the decreased about 15 or 20 days prior to her death. This piece of evidence, in our view, cannot serve as an incriminating circumstance involving these appellants and Narain in this dastardly murder. The second piece of evidence is that of PWs 3 and 4. These two witnesses speak about the suspicious movement of these two appellants in the company of Narain on the night of occurrence at about 8 or 9 p.m. Though the investigation started even on October 2, 1974, these two witnesses who were the resident of the same locality, did not volunteer any statement at the earliest. They offered themselves as witnesses only after 3 or 4 days after the recovery of the dead body. The third piece of circumstantial evidence pressed into service is that the appellant Prem at the time of arrest was in possession of a letter Ex. P 26 written under his hand admitting that he had committed some illegal act. The courts below have strongly relied upon this circumstance as a piece of formidable evidence. In our opinion this evidence cannot be relied upon for the reasons - namely (1) that the story that Prem was carrying on a letter admitting an illegal act is highly unbelievable and (2) that the letter does not make any reference to this particular case. The other circumstantial piece of evidence relied upon by the courts below is the recovery of two weapons Exs. P 8 and P 7 from the houses of Prem and Narain respectively on a search made on October 7, 1974. These two weapons are said to have been stained with human blood but the prosecution has not satisfactorily established that the blood found on these two weapons tallied with the blood group of the deceased. Lastly we are left with the evidence relating to the recovery of the ornaments, articles 1 to 6. These ornaments are said to has been recovered from the houses of the appellants on various dates i.e. a silver kada from the house of Narain on October 7, 1974, some other silver articles from the houses of Prem and Hardyal on October 8, 1974 and the bloodstained clothes of Hardyal from his house on October 29, 1974. Though much reliance was placed on the recovery of these ornaments, we are unable to agree with the view of the courts below for more than one reason. First, in P 1, these is absolutely no description of the ornaments of the deceased which she is said to have been wearing on the date of occurrence. Secondly, these ornaments were not recovered in pursuance of any statement made by the appellants. Thirdly, though even on October 7, 1974 the houses of the appellants were searched, no ornament was recovered. Similarly no blood-stained cloth was recovered from the house of Hardyal till October 29, 1974 i.e. for nearly a month from the date of occurrence. Fourthly, these appellants and Narain though were arrested even on October 5, 1974, it seems that no effort has been made by the police either on October 5, 1974 or on October 6, 1974 to made searches of the respective houses of the accused. When these appellants and Narain had been arrested even on October 5, 1974, it is incomprehensible that the inmates of the houses of these appellants were safely keeping these ornaments which were the subject matter of robbery thereby enabling the police to recover these articles on October 8, 1974. Fifthly, these ornaments are of common pattern usually worn by the ladies in Rajasthan. Though the appellants are claiming these ornaments as belonging to them, we are unable to accept the appellants statement, in the absence of tangible evidence in support of their statements, instead hold that this piece of evidence relating to the recovery of ornaments as not at all worth accepting6. In the present case in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn by the prosecution, have not been fully and satisfactorily established beyond all reasonable doubt. In short, the evidence on the record falls short of proving the guilt of the appellants and Narain
### Response:
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### Explanation:
5. The first circumstance relied upon by the prosecution is that these appellants made an inquiry from the deceased herself about her movement which she had later on reported to her sons PWs 1 and 7 and her husband. It transpires from the evidence that this report was made by the decreased about 15 or 20 days prior to her death. This piece of evidence, in our view, cannot serve as an incriminating circumstance involving these appellants and Narain in this dastardly murder. The second piece of evidence is that of PWs 3 and 4. These two witnesses speak about the suspicious movement of these two appellants in the company of Narain on the night of occurrence at about 8 or 9 p.m. Though the investigation started even on October 2, 1974, these two witnesses who were the resident of the same locality, did not volunteer any statement at the earliest. They offered themselves as witnesses only after 3 or 4 days after the recovery of the dead body. The third piece of circumstantial evidence pressed into service is that the appellant Prem at the time of arrest was in possession of a letter Ex. P 26 written under his hand admitting that he had committed some illegal act. The courts below have strongly relied upon this circumstance as a piece of formidable evidence. In our opinion this evidence cannot be relied upon for the reasonsnamely (1) that the story that Prem was carrying on a letter admitting an illegal act is highly unbelievable and (2) that the letter does not make any reference to this particular case. The other circumstantial piece of evidence relied upon by the courts below is the recovery of two weapons Exs. P 8 and P 7 from the houses of Prem and Narain respectively on a search made on October 7, 1974. These two weapons are said to have been stained with human blood but the prosecution has not satisfactorily established that the blood found on these two weapons tallied with the blood group of the deceased. Lastly we are left with the evidence relating to the recovery of the ornaments, articles 1 to 6. These ornaments are said to has been recovered from the houses of the appellants on various dates i.e. a silver kada from the house of Narain on October 7, 1974, some other silver articles from the houses of Prem and Hardyal on October 8, 1974 and the bloodstained clothes of Hardyal from his house on October 29, 1974. Though much reliance was placed on the recovery of these ornaments, we are unable to agree with the view of the courts below for more than one reason. First, in P 1, these is absolutely no description of the ornaments of the deceased which she is said to have been wearing on the date of occurrence. Secondly, these ornaments were not recovered in pursuance of any statement made by the appellants. Thirdly, though even on October 7, 1974 the houses of the appellants were searched, no ornament was recovered. Similarly nocloth was recovered from the house of Hardyal till October 29, 1974 i.e. for nearly a month from the date of occurrence. Fourthly, these appellants and Narain though were arrested even on October 5, 1974, it seems that no effort has been made by the police either on October 5, 1974 or on October 6, 1974 to made searches of the respective houses of the accused. When these appellants and Narain had been arrested even on October 5, 1974, it is incomprehensible that the inmates of the houses of these appellants were safely keeping these ornaments which were the subject matter of robbery thereby enabling the police to recover these articles on October 8, 1974. Fifthly, these ornaments are of common pattern usually worn by the ladies in Rajasthan. Though the appellants are claiming these ornaments as belonging to them, we are unable to accept the appellants statement, in the absence of tangible evidence in support of their statements, instead hold that this piece of evidence relating to the recovery of ornaments as not at all worth accepting6. In the present case in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn by the prosecution, have not been fully and satisfactorily established beyond all reasonable doubt. In short, the evidence on the record falls short of proving the guilt of the appellants and Narain
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Deputy Director Of Consolidation,Azamgarh Vs. Deen Bandhu Rai | unless he is satisfied that the proposed transfer is likely to defeat the scheme of consolidation and as we have arrived at the view that this exchange was not likely to defeat the scheme, he was bound to grant permission,"18. And in the concluding portion of the judgment they directed the Settlement Officer to pass an order keeping in view the principles of law which they have set out earlier i.e., in the passage extracted. This brings us to the question as to the scheme of the Act and the precise import of the phrase "likely to defeat the scheme of consolidation" in S. 16-A (2).19. Adopting the language of S. 13 of the Act, the question to be considered is whether the transfer for which permission is sought would contravene the principles referred to in S. 14 or the proposals referred to in S. 19. The two matters to be noticed in respect of both "the principles" of consolidation under S. 14 and of "the proposals" under S. 19, is that the Act specifically provides for objections being filed and for their being considered before the "principles" or the "proposals" attain finality. It is not very clear whether the present respondents filed or did not file any objections to the principles or the proposals under S. 16(2) or S. 20(2) respectively based upon their claim to exchange. If such objections have been filed, they would be dealt with in the manner prescribed and the decision on the objections and on the application for sanction would be founded on the same grounds. If however, no such objections were filed the question which would have to be considered by the Settlement Officer in dealing with the application under S. 16-A(1) would be whether the proposed transfer, if permitted, would affect substantially and in a concrete manner any of the "principles" which had become final under S. 18 or the "proposals which were confirmed under S. 23.The conflict to justify, a rejection under S. 16-A(2) must exist between "a principle" as formulated or a concrete "proposal" as confirmed, on the one hand and the transfer prayed for. If there should be such a conflict the officer would be entitled to refuse the permission but otherwise the applicant would be entitled to the grant of the permission sought. We need hardly add that it is for the officer to decide whether these conflicts exist and to pass a speaking order setting out the grounds for holding that such conflicts exist and the jurisdiction of the Court would be attracted only if there were an error apparent on the face of the record or similar infirmity in his order. The direction of the learned Judges, therefore, does not, with great respect to them, appear to us to be in accordance with the proper interpretation of S. 16-A (2) read with the other relevant provisions and we, therefore, set aside the order of the learned Judges also.20. Before concluding there is one matter to which we have already adverted and that relates to an assertion by the respondents in their petition to the High Court that the lands, transfer of which was sought, were contiguously situated in three of the villages concerned in the applications. We have further noticed that this statement was admitted by the appellant in his counter-affidavit. Mr.Aggarwala, while conceding that if the factual position was as above, the applications for transfer by way of exchange would have in respect of those plots had to be allowed, submitted that a mistake had been made in drafting the counter-affidavit in the High Court and that in fact, except in one village, there were lands belonging to third parties intervening between the chaks of the several respondents in the other two villages. Normally, there is no doubt that where allegations of fact are admitted, a party would not be allowed to go behind them, but this case is rather peculiar, in that parties do not seem to have paid attention to the details of the facts, but rather concentrated on what they considered to be points of law. In view of this we consider that it would not be proper to hold the appellant to the admission made in his affidavit before the High Court and particularly in view of the order we are passing directing the Settlement officer to dispose of the applications filed to him in accordance with law, the Settlement Officer could have regard to the actual location of the plots in the matter of granting the permission sought.21. It is only necessary to mention that subsequent to the order of the learned Judges of the Division Bench the Settlement Officer took up the matter afresh and passed an order August 31, 1962 granting permission under S. 16-A (1). But it is clear from a perusal of the said under that the same was granted not after any examination of the application with reference to the relevant provisions of the Act and of the "principles" and "proposals" under Ss. 14-18 and Ss. 19-23 respectively but only because of the order of the High Court Learned Counsel for the respondents attempted to suggest that that second order dated August 31, 1962 had become final and therefore could constitute a preliminary objection to the hearing of the appeal, on the ground that without setting aside this order the appellant could not obtain any relief regarding the correctness of the order of the High Court now under appeal. We consider that this objection by the respondents is without substance as this subsequent order of the Settlement Officer is wholly dependant on and was passed in mechanical compliance with the order of the High Court, and if the order of the learned Judges was wrong and ought to be set aside the existence of this order would be no bar to such a course, for this order of the Settlement Officer would fall with the order of the High Court on which it was based.22. | 1[ds]2. After hearing learned Counsel for the parties we have reached the conclusion that while the learned Judges of the High Court were right in setting aside the order of the Consolidation authorities refusing the application under S. 16-A of the Act, the directions which the High Court gave to the Settlement Officer in the matter of his reconsidering the applications were in their turn not proper and consequently while the appeal has to be allowed, the applications have to be remitted to the Settlement Officer for being disposed of properly in accordance with law.We should point out that the order of the Settlement officer is far from clear as to the precise grounds upon which the rejection was based. We also entertain little doubt about two points : (1) that at least in great part the reasons underlying the order of the Settlement Officer for rejecting the applications were the two we have set out earlier as those relied on by the High Court as grounds for holding his order to be invalid, and(2) that these reasons are not germane or pertinent for rejecting the application for exchange under S. 16-A (2). If these matters were taken into account, it is clear that the resulting order could not be justified and we consider, therefore, that the learned Judges of the High Court acted properly in setting aside the order of the Settlement Officer under Art.really the lands were in adjacent and contiguous chaks, it is difficult to see how the granting of the permission to exchange would violate any "principle" or "proposal" for in such an event the rights of no others would be affected and instead of a mother and a son or a father and the son holding adjacent chaks, one of them would be holding both. Mr. Aggarwala did not contest this position either. In fact, even the Settlement Officer pointed out in his order that having regard to the relationship between the parties they would be "deriving benefits of S. 15(d) of the Act, which Mr. Aggarwala suggested was a reference to the feature of contiguity in the light of their relationship. If this was what the officer had in mind, that would be a circumstance which should have led him to allow the exchange in regard to some, at least, of the lands, and in this view the rejection of the permission to exchange in respect of every item of land could not be sustained. This would be an additional reason why that order should be settwo matters to be noticed in respect of both "the principles" of consolidation under S. 14 and of "the proposals" under S. 19, is that the Act specifically provides for objections being filed and for their being considered before the "principles" or the "proposals" attain finality. It is not very clear whether the present respondents filed or did not file any objections to the principles or the proposals under S. 16(2) or S. 20(2) respectively based upon their claim to exchange. If such objections have been filed, they would be dealt with in the manner prescribed and the decision on the objections and on the application for sanction would be founded on the same grounds. If however, no such objections were filed the question which would have to be considered by the Settlement Officer in dealing with the application under S. 16-A(1) would be whether the proposed transfer, if permitted, would affect substantially and in a concrete manner any of the "principles" which had become final under S. 18 or the "proposals which were confirmed under S. 23.The conflict to justify, a rejection under S. 16-A(2) must exist between "a principle" as formulated or a concrete "proposal" as confirmed, on the one hand and the transfer prayed for. If there should be such a conflict the officer would be entitled to refuse the permission but otherwise the applicant would be entitled to the grant of the permission sought. We need hardly add that it is for the officer to decide whether these conflicts exist and to pass a speaking order setting out the grounds for holding that such conflicts exist and the jurisdiction of the Court would be attracted only if there were an error apparent on the face of the record or similar infirmity in his order. The direction of the learned Judges, therefore, does not, with great respect to them, appear to us to be in accordance with the proper interpretation of S. 16-A (2) read with the other relevant provisions and we, therefore, set aside the order of the learned Judgesview of this we consider that it would not be proper to hold the appellant to the admission made in his affidavit before the High Court and particularly in view of the order we are passing directing the Settlement officer to dispose of the applications filed to him in accordance with law, the Settlement Officer could have regard to the actual location of the plots in the matter of granting the permission sought.It is only necessary to mention that subsequent to the order of the learned Judges of the Division Bench the Settlement Officer took up the matter afresh and passed an order August 31, 1962 granting permission under S. 16-A (1). But it is clear from a perusal of the said under that the same was granted not after any examination of the application with reference to the relevant provisions of the Act and of the "principles" and "proposals" under Ss. 14-18 and Ss. 19-23 respectively but only because of the order of the High Court Learned Counsel for the respondents attempted to suggest that that second order dated August 31, 1962 had become final and therefore could constitute a preliminary objection to the hearing of the appeal, on the ground that without setting aside this order the appellant could not obtain any relief regarding the correctness of the order of the High Court now under appeal. We consider that this objection by the respondents is without substance as this subsequent order of the Settlement Officer is wholly dependant on and was passed in mechanical compliance with the order of the High Court, and if the order of the learned Judges was wrong and ought to be set aside the existence of this order would be no bar to such a course, for this order of the Settlement Officer would fall with the order of the High Court on which it was based. | 1 | 5,844 | 1,184 | ### 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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unless he is satisfied that the proposed transfer is likely to defeat the scheme of consolidation and as we have arrived at the view that this exchange was not likely to defeat the scheme, he was bound to grant permission,"18. And in the concluding portion of the judgment they directed the Settlement Officer to pass an order keeping in view the principles of law which they have set out earlier i.e., in the passage extracted. This brings us to the question as to the scheme of the Act and the precise import of the phrase "likely to defeat the scheme of consolidation" in S. 16-A (2).19. Adopting the language of S. 13 of the Act, the question to be considered is whether the transfer for which permission is sought would contravene the principles referred to in S. 14 or the proposals referred to in S. 19. The two matters to be noticed in respect of both "the principles" of consolidation under S. 14 and of "the proposals" under S. 19, is that the Act specifically provides for objections being filed and for their being considered before the "principles" or the "proposals" attain finality. It is not very clear whether the present respondents filed or did not file any objections to the principles or the proposals under S. 16(2) or S. 20(2) respectively based upon their claim to exchange. If such objections have been filed, they would be dealt with in the manner prescribed and the decision on the objections and on the application for sanction would be founded on the same grounds. If however, no such objections were filed the question which would have to be considered by the Settlement Officer in dealing with the application under S. 16-A(1) would be whether the proposed transfer, if permitted, would affect substantially and in a concrete manner any of the "principles" which had become final under S. 18 or the "proposals which were confirmed under S. 23.The conflict to justify, a rejection under S. 16-A(2) must exist between "a principle" as formulated or a concrete "proposal" as confirmed, on the one hand and the transfer prayed for. If there should be such a conflict the officer would be entitled to refuse the permission but otherwise the applicant would be entitled to the grant of the permission sought. We need hardly add that it is for the officer to decide whether these conflicts exist and to pass a speaking order setting out the grounds for holding that such conflicts exist and the jurisdiction of the Court would be attracted only if there were an error apparent on the face of the record or similar infirmity in his order. The direction of the learned Judges, therefore, does not, with great respect to them, appear to us to be in accordance with the proper interpretation of S. 16-A (2) read with the other relevant provisions and we, therefore, set aside the order of the learned Judges also.20. Before concluding there is one matter to which we have already adverted and that relates to an assertion by the respondents in their petition to the High Court that the lands, transfer of which was sought, were contiguously situated in three of the villages concerned in the applications. We have further noticed that this statement was admitted by the appellant in his counter-affidavit. Mr.Aggarwala, while conceding that if the factual position was as above, the applications for transfer by way of exchange would have in respect of those plots had to be allowed, submitted that a mistake had been made in drafting the counter-affidavit in the High Court and that in fact, except in one village, there were lands belonging to third parties intervening between the chaks of the several respondents in the other two villages. Normally, there is no doubt that where allegations of fact are admitted, a party would not be allowed to go behind them, but this case is rather peculiar, in that parties do not seem to have paid attention to the details of the facts, but rather concentrated on what they considered to be points of law. In view of this we consider that it would not be proper to hold the appellant to the admission made in his affidavit before the High Court and particularly in view of the order we are passing directing the Settlement officer to dispose of the applications filed to him in accordance with law, the Settlement Officer could have regard to the actual location of the plots in the matter of granting the permission sought.21. It is only necessary to mention that subsequent to the order of the learned Judges of the Division Bench the Settlement Officer took up the matter afresh and passed an order August 31, 1962 granting permission under S. 16-A (1). But it is clear from a perusal of the said under that the same was granted not after any examination of the application with reference to the relevant provisions of the Act and of the "principles" and "proposals" under Ss. 14-18 and Ss. 19-23 respectively but only because of the order of the High Court Learned Counsel for the respondents attempted to suggest that that second order dated August 31, 1962 had become final and therefore could constitute a preliminary objection to the hearing of the appeal, on the ground that without setting aside this order the appellant could not obtain any relief regarding the correctness of the order of the High Court now under appeal. We consider that this objection by the respondents is without substance as this subsequent order of the Settlement Officer is wholly dependant on and was passed in mechanical compliance with the order of the High Court, and if the order of the learned Judges was wrong and ought to be set aside the existence of this order would be no bar to such a course, for this order of the Settlement Officer would fall with the order of the High Court on which it was based.22.
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to be remitted to the Settlement Officer for being disposed of properly in accordance with law.We should point out that the order of the Settlement officer is far from clear as to the precise grounds upon which the rejection was based. We also entertain little doubt about two points : (1) that at least in great part the reasons underlying the order of the Settlement Officer for rejecting the applications were the two we have set out earlier as those relied on by the High Court as grounds for holding his order to be invalid, and(2) that these reasons are not germane or pertinent for rejecting the application for exchange under S. 16-A (2). If these matters were taken into account, it is clear that the resulting order could not be justified and we consider, therefore, that the learned Judges of the High Court acted properly in setting aside the order of the Settlement Officer under Art.really the lands were in adjacent and contiguous chaks, it is difficult to see how the granting of the permission to exchange would violate any "principle" or "proposal" for in such an event the rights of no others would be affected and instead of a mother and a son or a father and the son holding adjacent chaks, one of them would be holding both. Mr. Aggarwala did not contest this position either. In fact, even the Settlement Officer pointed out in his order that having regard to the relationship between the parties they would be "deriving benefits of S. 15(d) of the Act, which Mr. Aggarwala suggested was a reference to the feature of contiguity in the light of their relationship. If this was what the officer had in mind, that would be a circumstance which should have led him to allow the exchange in regard to some, at least, of the lands, and in this view the rejection of the permission to exchange in respect of every item of land could not be sustained. This would be an additional reason why that order should be settwo matters to be noticed in respect of both "the principles" of consolidation under S. 14 and of "the proposals" under S. 19, is that the Act specifically provides for objections being filed and for their being considered before the "principles" or the "proposals" attain finality. It is not very clear whether the present respondents filed or did not file any objections to the principles or the proposals under S. 16(2) or S. 20(2) respectively based upon their claim to exchange. If such objections have been filed, they would be dealt with in the manner prescribed and the decision on the objections and on the application for sanction would be founded on the same grounds. If however, no such objections were filed the question which would have to be considered by the Settlement Officer in dealing with the application under S. 16-A(1) would be whether the proposed transfer, if permitted, would affect substantially and in a concrete manner any of the "principles" which had become final under S. 18 or the "proposals which were confirmed under S. 23.The conflict to justify, a rejection under S. 16-A(2) must exist between "a principle" as formulated or a concrete "proposal" as confirmed, on the one hand and the transfer prayed for. If there should be such a conflict the officer would be entitled to refuse the permission but otherwise the applicant would be entitled to the grant of the permission sought. We need hardly add that it is for the officer to decide whether these conflicts exist and to pass a speaking order setting out the grounds for holding that such conflicts exist and the jurisdiction of the Court would be attracted only if there were an error apparent on the face of the record or similar infirmity in his order. The direction of the learned Judges, therefore, does not, with great respect to them, appear to us to be in accordance with the proper interpretation of S. 16-A (2) read with the other relevant provisions and we, therefore, set aside the order of the learned Judgesview of this we consider that it would not be proper to hold the appellant to the admission made in his affidavit before the High Court and particularly in view of the order we are passing directing the Settlement officer to dispose of the applications filed to him in accordance with law, the Settlement Officer could have regard to the actual location of the plots in the matter of granting the permission sought.It is only necessary to mention that subsequent to the order of the learned Judges of the Division Bench the Settlement Officer took up the matter afresh and passed an order August 31, 1962 granting permission under S. 16-A (1). But it is clear from a perusal of the said under that the same was granted not after any examination of the application with reference to the relevant provisions of the Act and of the "principles" and "proposals" under Ss. 14-18 and Ss. 19-23 respectively but only because of the order of the High Court Learned Counsel for the respondents attempted to suggest that that second order dated August 31, 1962 had become final and therefore could constitute a preliminary objection to the hearing of the appeal, on the ground that without setting aside this order the appellant could not obtain any relief regarding the correctness of the order of the High Court now under appeal. We consider that this objection by the respondents is without substance as this subsequent order of the Settlement Officer is wholly dependant on and was passed in mechanical compliance with the order of the High Court, and if the order of the learned Judges was wrong and ought to be set aside the existence of this order would be no bar to such a course, for this order of the Settlement Officer would fall with the order of the High Court on which it was based.
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Smt. Rajbir Kaur & Another Vs. Messrs S. Chokesiri and Company | is permissible. However it is not necessary to pronounce on this question as even the other evidence on record relied upon by the trial Court and the appellate Court supports their finding as to the exclusive possession of the ice-cream seller. (21.) Dipak Banerjees case (AIR 1987 SC 2055 ) on which strong reliance was placed by Dr. Chitaley does not, in our opinion, advance the case of the respondent any further. There, the question was whether the tenant had sublet two rooms in the premises to a tailor who is stated to have established therein a tailoring business. The tenant denying the subletting contended that the tailor was allowed to occupy a part of the premises "due to pity and charity" and that he was "sewing in the house without any rent". It would appear that the tenant also did some service for the landlord and the members of his family. The alleged sub-tenant not having entered the box, the plea of subletting had come to be accepted. In the appeal before this Court it was held that there was neither pleading nor evidence nor a specific finding on the question of exclusive possession of the alleged subtenant and that, therefore, one of the essential ingredients of a sub-lease was lacking. It was further held that providing of services could not also be construed as consideration for purposes of the Rent Acts and that, therefore, the second ingredient was also absent. The decision turned on the particular facts of the case. That case could be of no assistance to the respondents. Likewise, the decisions in Kallil Ahmeds case (AIR 1988 SC 184 ), where also, on the facts of the case, it was held that the case of a sub-lease had not been made good. (22.) Dr. Chitaley then urged that there was not even a pleading by the appellant on the point of money-consideration for the parting of possession and that no amount of evidence adduced on a point not pleaded could at all be looked into. As a general proposition the submission is unexceptionable; but in the present case, the point, in our opinion, is not well taken. Appellants specifically pleaded "subletting". Respondent understood that pleading as to imply all the incidents of subletting including the element of rent and specifically traversed that plea by denying the existence of consideration. Parties went to trial with full knowledge of the ambit of the case of each other. In the circumstances the pleadings would require to be construed liberally. In Ram Sarup Gupta v. Bishun Narain Inter College AIR 1987 SC 1242 this Court said this of the need to construe pleadings liberally : "... ....Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal" (Emphasis supplied) After all, the "parties do not have the foresight of prophets and their lawyers the draftmanship of a Chalmers". There is no substance in this contention of Dr. Chitaley either. (23.) The High Court did not deal specifically with the question whether, in the circumstances of the case, an inference that the parting of the exclusive possession was prompted by monetary consideration could be drawn or not. The High Court, did not examine this aspect of the matter, as according to it, one of the essential ingredients, viz., of exclusive possession had not been established. If exclusive possession is established, and the version of the respondent as to the particulars and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, it may not be impermissible for the Court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the respondent to rebut this. Such transactions of subletting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence got. It is not, unoften, a matter for legitimate inference. The burden of making good a case of subletting is, of course, on the appellants. The burden of establishing facts and contentions which support the partys case is on the party who takes the risk of non-persuasion. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. In the circumstances of the case, we think, that appellants having been forced by the Courts below to have established exclusive possession of the ice-cream vendor of a part of the demised-premises and the explanation of the transaction offered by the respondent having been found by the Courts below, to be unsatisfactory and unacceptable, it was not impermissible for the Courts to draw an inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into for monetary considerations. There is no explanation forthcoming from the respondent appropriate to the situation as found. | 1[ds]In the present case, it is no doubt true, that the order dated 3-2-1975 of the trial court appointing a Commissioner did not in terms direct the parties to appear before the Commissioner. There is this infirmity in the proceedings of the CommissionerBut it is possible to construe the power to appoint a Commissioner to inspect the extant state and nature of structures as not confined to Rule 9 of Order 26 but referable to Rule 7 of Order 39CPC where the court can dispense with prior notice, should it appear to the court that the very object of making of appointment of a Commissioner would be defeated and frustrated by the issue of prior notice. On the scope of Rule 8 of Order 39 as it stood even prior to its amendment, High Courts have held that an ex parte order appointing a Commissioner is permissible. However it is not necessary to pronounce on this question as even the other evidence on record relied upon by the trial Court and the appellate Court supports their finding as to the exclusive possession of the ice-cream seller(21.) Dipak Banerjees case (AIR 1987 SC 2055 ) on which strong reliance was placed by Dr. Chitaley does not, in our opinion, advance the case of the respondent any further. There, the question was whether the tenant had sublet two rooms in the premises to a tailor who is stated to have established therein a tailoring business. The tenant denying the subletting contended that the tailor was allowed to occupy a part of the premises "due to pity and charity" and that he was "sewing in the house without any rent". It would appear that the tenant also did some service for the landlord and the members of his family. The alleged sub-tenant not having entered the box, the plea of subletting had come to be accepted. In the appeal before this Court it was held that there was neither pleading nor evidence nor a specific finding on the question of exclusive possession of the alleged subtenant and that, therefore, one of the essential ingredients of a sub-lease was lacking. It was further held that providing of services could not also be construed as consideration for purposes of the Rent Acts and that, therefore, the second ingredient was also absent. The decision turned on the particular facts of the case. That case could be of no assistance to the respondents. Likewise, the decisions in Kallil Ahmeds case (AIR 1988 SC 184 ), where also, on the facts of the case, it was held that the case of a sub-lease had not been made good(22.) Dr. Chitaley then urged that there was not even a pleading by the appellant on the point of money-consideration for the parting of possession and that no amount of evidence adduced on a point not pleaded could at all be looked into. As a general proposition the submission is unexceptionable; but in the present case, the point, in our opinion, is not well taken. Appellants specifically pleaded "subletting". Respondent understood that pleading as to imply all the incidents of subletting including the element of rent and specifically traversed that plea by denying the existence of consideration. Parties went to trial with full knowledge of the ambit of the case of each other. In the circumstances the pleadings would require to be construed liberally(23.) The High Court did not deal specifically with the question whether, in the circumstances of the case, an inference that the parting of the exclusive possession was prompted by monetary consideration could be drawn or not. The High Court, did not examine this aspect of the matter, as according to it, one of the essential ingredients, viz., of exclusive possession had not been established. If exclusive possession is established, and the version of the respondent as to the particulars and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, it may not be impermissible for the Court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the respondent to rebut this. Such transactions of subletting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence got. It is not, unoften, a matter for legitimate inference. The burden of making good a case of subletting is, of course, on the appellants. The burden of establishing facts and contentions which support the partys case is on the party who takes the risk of non-persuasion. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. In the circumstances of the case, we think, that appellants having been forced by the Courts below to have established exclusive possession of the ice-cream vendor of a part of the demised-premises and the explanation of the transaction offered by the respondent having been found by the Courts below, to be unsatisfactory and unacceptable, it was not impermissible for the Courts to draw an inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into for monetary considerations. There is no explanation forthcoming from the respondent appropriate to the situation as found. | 1 | 9,904 | 1,028 | ### 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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is permissible. However it is not necessary to pronounce on this question as even the other evidence on record relied upon by the trial Court and the appellate Court supports their finding as to the exclusive possession of the ice-cream seller. (21.) Dipak Banerjees case (AIR 1987 SC 2055 ) on which strong reliance was placed by Dr. Chitaley does not, in our opinion, advance the case of the respondent any further. There, the question was whether the tenant had sublet two rooms in the premises to a tailor who is stated to have established therein a tailoring business. The tenant denying the subletting contended that the tailor was allowed to occupy a part of the premises "due to pity and charity" and that he was "sewing in the house without any rent". It would appear that the tenant also did some service for the landlord and the members of his family. The alleged sub-tenant not having entered the box, the plea of subletting had come to be accepted. In the appeal before this Court it was held that there was neither pleading nor evidence nor a specific finding on the question of exclusive possession of the alleged subtenant and that, therefore, one of the essential ingredients of a sub-lease was lacking. It was further held that providing of services could not also be construed as consideration for purposes of the Rent Acts and that, therefore, the second ingredient was also absent. The decision turned on the particular facts of the case. That case could be of no assistance to the respondents. Likewise, the decisions in Kallil Ahmeds case (AIR 1988 SC 184 ), where also, on the facts of the case, it was held that the case of a sub-lease had not been made good. (22.) Dr. Chitaley then urged that there was not even a pleading by the appellant on the point of money-consideration for the parting of possession and that no amount of evidence adduced on a point not pleaded could at all be looked into. As a general proposition the submission is unexceptionable; but in the present case, the point, in our opinion, is not well taken. Appellants specifically pleaded "subletting". Respondent understood that pleading as to imply all the incidents of subletting including the element of rent and specifically traversed that plea by denying the existence of consideration. Parties went to trial with full knowledge of the ambit of the case of each other. In the circumstances the pleadings would require to be construed liberally. In Ram Sarup Gupta v. Bishun Narain Inter College AIR 1987 SC 1242 this Court said this of the need to construe pleadings liberally : "... ....Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal" (Emphasis supplied) After all, the "parties do not have the foresight of prophets and their lawyers the draftmanship of a Chalmers". There is no substance in this contention of Dr. Chitaley either. (23.) The High Court did not deal specifically with the question whether, in the circumstances of the case, an inference that the parting of the exclusive possession was prompted by monetary consideration could be drawn or not. The High Court, did not examine this aspect of the matter, as according to it, one of the essential ingredients, viz., of exclusive possession had not been established. If exclusive possession is established, and the version of the respondent as to the particulars and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, it may not be impermissible for the Court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the respondent to rebut this. Such transactions of subletting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence got. It is not, unoften, a matter for legitimate inference. The burden of making good a case of subletting is, of course, on the appellants. The burden of establishing facts and contentions which support the partys case is on the party who takes the risk of non-persuasion. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. In the circumstances of the case, we think, that appellants having been forced by the Courts below to have established exclusive possession of the ice-cream vendor of a part of the demised-premises and the explanation of the transaction offered by the respondent having been found by the Courts below, to be unsatisfactory and unacceptable, it was not impermissible for the Courts to draw an inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into for monetary considerations. There is no explanation forthcoming from the respondent appropriate to the situation as found.
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In the present case, it is no doubt true, that the order dated 3-2-1975 of the trial court appointing a Commissioner did not in terms direct the parties to appear before the Commissioner. There is this infirmity in the proceedings of the CommissionerBut it is possible to construe the power to appoint a Commissioner to inspect the extant state and nature of structures as not confined to Rule 9 of Order 26 but referable to Rule 7 of Order 39CPC where the court can dispense with prior notice, should it appear to the court that the very object of making of appointment of a Commissioner would be defeated and frustrated by the issue of prior notice. On the scope of Rule 8 of Order 39 as it stood even prior to its amendment, High Courts have held that an ex parte order appointing a Commissioner is permissible. However it is not necessary to pronounce on this question as even the other evidence on record relied upon by the trial Court and the appellate Court supports their finding as to the exclusive possession of the ice-cream seller(21.) Dipak Banerjees case (AIR 1987 SC 2055 ) on which strong reliance was placed by Dr. Chitaley does not, in our opinion, advance the case of the respondent any further. There, the question was whether the tenant had sublet two rooms in the premises to a tailor who is stated to have established therein a tailoring business. The tenant denying the subletting contended that the tailor was allowed to occupy a part of the premises "due to pity and charity" and that he was "sewing in the house without any rent". It would appear that the tenant also did some service for the landlord and the members of his family. The alleged sub-tenant not having entered the box, the plea of subletting had come to be accepted. In the appeal before this Court it was held that there was neither pleading nor evidence nor a specific finding on the question of exclusive possession of the alleged subtenant and that, therefore, one of the essential ingredients of a sub-lease was lacking. It was further held that providing of services could not also be construed as consideration for purposes of the Rent Acts and that, therefore, the second ingredient was also absent. The decision turned on the particular facts of the case. That case could be of no assistance to the respondents. Likewise, the decisions in Kallil Ahmeds case (AIR 1988 SC 184 ), where also, on the facts of the case, it was held that the case of a sub-lease had not been made good(22.) Dr. Chitaley then urged that there was not even a pleading by the appellant on the point of money-consideration for the parting of possession and that no amount of evidence adduced on a point not pleaded could at all be looked into. As a general proposition the submission is unexceptionable; but in the present case, the point, in our opinion, is not well taken. Appellants specifically pleaded "subletting". Respondent understood that pleading as to imply all the incidents of subletting including the element of rent and specifically traversed that plea by denying the existence of consideration. Parties went to trial with full knowledge of the ambit of the case of each other. In the circumstances the pleadings would require to be construed liberally(23.) The High Court did not deal specifically with the question whether, in the circumstances of the case, an inference that the parting of the exclusive possession was prompted by monetary consideration could be drawn or not. The High Court, did not examine this aspect of the matter, as according to it, one of the essential ingredients, viz., of exclusive possession had not been established. If exclusive possession is established, and the version of the respondent as to the particulars and the incidents of the transaction is found unacceptable in the particular facts and circumstances of the case, it may not be impermissible for the Court to draw an inference that the transaction was entered into with monetary consideration in mind. It is open to the respondent to rebut this. Such transactions of subletting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the sub-tenant and there cannot be direct evidence got. It is not, unoften, a matter for legitimate inference. The burden of making good a case of subletting is, of course, on the appellants. The burden of establishing facts and contentions which support the partys case is on the party who takes the risk of non-persuasion. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial. In the circumstances of the case, we think, that appellants having been forced by the Courts below to have established exclusive possession of the ice-cream vendor of a part of the demised-premises and the explanation of the transaction offered by the respondent having been found by the Courts below, to be unsatisfactory and unacceptable, it was not impermissible for the Courts to draw an inference, having regard to the ordinary course of human conduct, that the transaction must have been entered into for monetary considerations. There is no explanation forthcoming from the respondent appropriate to the situation as found.
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NATIONAL FERTILIZERS LIMITED Vs. COLLECTOR OF C. EX., CHANDIGARH | 1. Having regard to the decisions of this court in O.N.G.C. v. Collector of Central Excise, [1992 (61) E.L.T. 3] and O.N.G.C. v. Collector of Central Excise, [1994 (70) E.L.T. 45], the disputes between the parties, who are a Central Government company and a department of the Central Government, have been referred to a committee. On 30th November, 1994 this court took notice of the reference and adjourned the appeals by two months stating that if no decision was taken by the committee the appeals might be proceeded with on the next date of hearing. 2. Learned counsel now bring to our attention the minutes of a meeting held on 11th January, 1994 by the committee in regard to the settlement of disputes between the parties. One of the issues that the committee dealt with is, as counsel state, that involved in these appeals [Paragraph No. 6(iv)]. Sub-paragraph (v) stated that it was resolved that a joint application would be moved before the CEGAT for early hearing and disposal of the appeals. On the above lines, National Fertilizers Limited would withdraw the appeals filed in the Supreme Court. 3. Learned counsel for the appellant states that though the appellant had been asked for instructions, no instructions have been forthcoming and that, therefore, the appellant should be permitted to argue the appeals. That does not appear to us to be permissible having regard to the fact that the disputes were, as aforesaid, referred to and resolved by the committee and it has resolved that the appellant would withdraw the appeals filed in the Supreme Court. Since the appellants counsel has no instructions to withdraw the appeals, we shall proceed to dismiss them with the following observations. | 0[ds]That does not appear to us to be permissible having regard to the fact that the disputes were, as aforesaid, referred to and resolved by the committee and it has resolved that the appellant would withdraw the appeals filed in the Supreme Court. Since the appellants counsel has no instructions to withdraw the appeals, we shall proceed to dismiss them with the following observations. | 0 | 333 | 73 | ### 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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1. Having regard to the decisions of this court in O.N.G.C. v. Collector of Central Excise, [1992 (61) E.L.T. 3] and O.N.G.C. v. Collector of Central Excise, [1994 (70) E.L.T. 45], the disputes between the parties, who are a Central Government company and a department of the Central Government, have been referred to a committee. On 30th November, 1994 this court took notice of the reference and adjourned the appeals by two months stating that if no decision was taken by the committee the appeals might be proceeded with on the next date of hearing. 2. Learned counsel now bring to our attention the minutes of a meeting held on 11th January, 1994 by the committee in regard to the settlement of disputes between the parties. One of the issues that the committee dealt with is, as counsel state, that involved in these appeals [Paragraph No. 6(iv)]. Sub-paragraph (v) stated that it was resolved that a joint application would be moved before the CEGAT for early hearing and disposal of the appeals. On the above lines, National Fertilizers Limited would withdraw the appeals filed in the Supreme Court. 3. Learned counsel for the appellant states that though the appellant had been asked for instructions, no instructions have been forthcoming and that, therefore, the appellant should be permitted to argue the appeals. That does not appear to us to be permissible having regard to the fact that the disputes were, as aforesaid, referred to and resolved by the committee and it has resolved that the appellant would withdraw the appeals filed in the Supreme Court. Since the appellants counsel has no instructions to withdraw the appeals, we shall proceed to dismiss them with the following observations.
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That does not appear to us to be permissible having regard to the fact that the disputes were, as aforesaid, referred to and resolved by the committee and it has resolved that the appellant would withdraw the appeals filed in the Supreme Court. Since the appellants counsel has no instructions to withdraw the appeals, we shall proceed to dismiss them with the following observations.
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Siddheshwar Sahakari Sakhar Karkhana Ltd Vs. C.I.T., Kolhapur | funds like Chief Ministers Relief Fund, the amount collected towards Area Development Fund is retained by the sugar factory itself and utilized as per the guidelines issued by the Government or the National Cooperatives Development Corporation. The collective Body of the Society and its elected representatives take the decision as to how much amount has to be spent and for what purposes. The Director of Sugars or other designated official, no doubt acts in a supervisory capacity to oversee that the funds are properly utilized. On that account, it cannot be said that the collection is made by the Society as an agent of the Government or the proprietary interest in the funds is vested with the Government. The conclusion has been reached by the Tribunal mainly on the basis of requirement of prior sanction of the Director of Sugars for incurring the expenditure. Such restriction prescribed in the larger interest of the Society itself does not in any way detract from the fact that the Societies concerned do exercise dominion over the fund and deal with that money subject of course to the guidelines and restrictions evolved by the Government. The Tribunal failed to approach the question in proper perspective on an analysis of the relevant circulars and orders. The High Court too fell into an error in invoking the theory of diversion of income at source. The crux of the matter is that there has never been a diversion of income to a third party (Government) before it reached the assessee. The receipts in the form of the Area Development Fund always remained with the assessee. 61. It could still be contended, as has been contended by learned senior counsel appearing for the assessees, that the realizations made by the assessee towards Area Development Fund are impressed with a specific legal obligation to spend the monies for specified purposes which are unrelated to the business of the sugar factory and therefore such receipts cannot be treated as income of the assessee. The analogy of collection of amounts towards charity, as in the case of C.I.T. vs. Bijlee Cotton Mills [(1979) 1 SCC 496] , has been invoked to substantiate the argument. It is contended that the realizations towards Area Development Fund would more or less stand on the same footing as deposits. The controversy has not been approached in the light of the above arguments. We do not consider it appropriate to express our view for the first time, especially when the determination thereof may depend on the consideration of certain facts. We therefore leave this point open for fresh determination by the Tribunal. 62. As far as Sugar Cane Development Fund is concerned, the case of the Revenue seems to stand on a stronger footing. In the paper-book, we find a Circular dated 18th August, 1986 in which certain directive principles have been laid down to regulate the expenditure to be incurred out of Cane Development Fund. The items specified in the directive principles are (1) green manuring, (2) lift irrigation schemes, (3) distribution of cane seeds and (4) construction of new wells or deepening of old wells. The sugar factory is required to make sure that any project which they want to undertake out of the Cane Development Fund is technically and financially sound and to send the proposals in advance to the Directorate of Sugar for requisite sanction. The projects will directly benefit the members and augment the sugarcane production, which will incidentally help the Society in its manufacturing operations. The beneficiaries under the scheme are no other than the members of the Sugar Cooperative Society concerned and the advantage of enhanced production of sugarcane will ultimately be felt by the Society itself. Unlike the Area Development Fund, the monies out of Cane Development Fund are not spent for purposes unconnected with the growth and functioning of the sugar factory. The Tribunal was inclined to view it as a compulsory levy on the depositors collected by the Government through the agency of sugar factory. This approach in our view is wholly unsustainable and is in the realm of surmise. We do not also see any scope for the application of principle of diversion of income at source in the case of collections made towards Cane Development Fund. The amounts realized on this account undoubtedly reach the assessee as its income and is utilized by the assessee for the benefit of itself and its members. As already observed, the supervisory role of the Directorate of Sugar to ensure that the amount is properly utilized to promote the objectives with which the fund was formed, does not make a material difference on the quality and character of the receipt. We are therefore of the view that the deductions made out of cane price towards Cane Development Fund should be treated as the income of the assessee. We are, of course, not expressing any view whether it is a permissible deduction under the provisions of the Income Tax Act. If any such claim is made, the Tribunal shall examine the same when the matters are taken up by it to consider the issue of tax liability in relation to Area Development Fund.63. Though the item relating to collections towards Members Small Savings Scheme has also been included in the memorandum of appeal, no argument has been advanced on this aspect and therefore we need not deal with this.64. We therefore allow the appeals of the Commissioner of Income Tax partly in respect of the amounts collected by the respondents-Societies towards Cane Development Fund and Area Development Fund. We declare that the amount collected towards Cane Development Fund shall be treated as the income of the assessees and any claim for deduction shall be entertained and decided by the Tribunal. As regards the Area Development Fund, the matters are remitted to the Income Tax Appellate Tribunal, Pune Bench for fresh determination subject to the observations made in this judgment. In respect of other items, the appeals shall stand dismissed.65. | 1[ds]First, discussion needs to be focused on the first feature, namely, conversion of deposit into shares. The Tribunal rightly pointed out and it is not disputed before us that such conversion is as good as refund. Such conversion into additional shares is however postponed till the events of repayment of loans towards capital expenditure and the repayment of Government share capital happen. In other words, till such time, the member / depositor has no immediate right to demand the payment. Nevertheless, the obligation to repay stood annexed to the deposited amount at the time it was received by the assessee subject of course to the occurrence of the contingency specified in the bye-law itself. It cannot be said, as has been said by the High Court, that under the bye-laws, no event or contingency has been contemplated" under which the members could demand the repayment of the deposit. Nor can it be said that even after the happening of the event specified in the bye-laws, the right to demand repayment becomes illusory in view of the discretion reserved to the Board of Directors of the Society. In this context, much of the argument has been built up on the use of the expression may followed by the words convert such deposits into shares after payment of loans etc." It is contended by the learned counsel appearing for the Revenue that the Board of Directors may very well refuse to convert the deposits into shares in exercise of its discretion on the ostensible ground that the financial position of the Society does not permit such conversion. The very existence of discretion, it is pointed out, negates the existence of liability to convert the deposit into shares. We cannot accede to this contention.In our view, the retention of the deposited money with the Society in order to utilize the same for repayment of term loans etc., does not denude the amount of its character of deposit carrying with it the obligation to repay. Nor is it necessary, as the High Court was inclined to think, that the separate identity of the deposited amounts should be kept up. The absence of the right to secure repayment on demand is again not inconsistent with the receipt being a deposit. Liability to return need not be immediate and unconditional, following a demand by the depositor. Even if such liability gets crystallized on the happening of a specified contingency, it is still a liability which can be legally enforced by the depositor. The existence of such liability is an antithesis to the idea of ownership of the money by the Society.It is the contention of the learned senior counsel appearing for the Revenue that the possibility of return of the deposit (by way of conversion into shares) depends on uncertain events and the repayment remains to be a remote possibility. It is difficult to appreciate this contention. True, the obligation to refund the deposit by way of conversion into shares would arise only on the occurrence of the contingencies specified in the bye-laws. But, in our view, it is wrong to assume that the events giving rise to refund are uncertain. The repayment of loans taken for capital expenditure and the share capital of the Government are the two specified events which are by no means uncertain, though the time of repayment is indefinite. On the occurrence of the said two events, the right to demand refund would accrue to the depositor. The obligation which had been in inchoate form ripened itself into a complete obligation on the occurring of specified events stipulated in the bye laws. Such an obligation may be contingent in nature initially but the right to enforce the obligation inheres in the depositor from the beginning. The existence of other features such as transferability of the deposit to another member and the provision for refund of the deposited amount to the member in case of cessation of membership or to his legal heirs in case of death, are important indicators against the treatment of the deposited amount as the money belonging to the Society. The payment of interest from year to year at a specified rate is another important factor that supports the conclusion of the disputed sum being a deposit. Such payment of interest is only consistent with the fact that the deposited amount still belongs to the member. The fact that the deposited amounts are credited to the individual accounts of the members is a corroborative circumstance to indicate that the deposits belong to the members.Viewed from the point of view of the primary purpose of deposit a test which has been formulated by this Court in Bazpur case though without much of discussion, we are of the view that the answer cannot be the same as in Bazpur case. In this connection the Tribunal recorded the finding that the purpose of collecting non- refundable deposits "was not only to repay term loans taken from financial institutions and to repay the government share capital, but also to convert the so called deposits into shares". The Tribunal expressed the view that the whole idea was to increase the capital base of the assessee in a phased manner by retaining some portion of the money payable to cane-growers, while at the same time compensating the depositors by way of interest. However, the High Court was not inclined to accept the finding of the Tribunal. The High Courtthe contrary the above bye-laws clearly indicate that the primary purpose of collecting the deposits i.e. the deductions was to discharge the liabilities of theare unable to endorse the view taken by the High Court. Meeting the financial commitments of the Society may be one of the purpose for which the deposits were collected but that is not all. The augmentation of the share capital which may be in the overall interests of the members as well as the Society is an equally important purpose which cannot be overlooked. At any rate, the view taken by the Tribunal appears to be a reasonable view and the High Court need not have disturbed thatHigh Court relied on the decision of the same High Court in Shree Nirmal Commercial Ltd vs. C.I.T. [193 in ITR 694] in order to hold that the payment of interest on the deposited amount is not inconsistent with the amounting being a revenue receipt. We are of the view that the ratio of that decision cannot be pressed into service in the present case. On a consideration of the Scheme and Agreement under which non-refundable interest-bearing deposit was collected by the assessee-company, it was found as a matter of fact that "the deposit was the absolute property of the Company and the provision for payment of interest was only a device for showing the amount received in the course of trade as deposit." In the instant case, the plea of device, though raised faintly before the Tribunal, was not accepted. It rejected the argument that the provision in the bye-law 61-A providing for conversion of deposits into share-capital was a make believe affair and that the High Court in answer to question No.12 affirmed this finding.For the aforesaid reasons we conclude that the non-refundable and refundable deposits cannot be treated as the income of the assessee-Societies. The Civil Appeals filed by the assessees/Co-operative Sugar Factories are allowed without costs.As regards the Chief Ministers Relief Fund, Late Y.B. Chavan Memorial Fund and Hutment Fund, no serious attempt has been made to assail the order of the Tribunal/High Court, the obvious reason being that they were required to be and in fact being remitted to the Government or to the Trustees of late Y.B. Chavan Prathisthan. The assessee merely acted as an agent in collecting the amounts and remitting the same to the Government/Trustees. In truth and in substance, the money collected by the assessee was not reaching the assessee as part of its income, but the collection was made "for and on behalf of the person to whom it is payable", to borrow the language in CIT vs. Sheetal Das [41 ITR 367] . It had no manner of right or title over the said monies. The amount collected towards Hutment Fund stands on no different footing. It was meant to be handed over to Collector for the purpose of providing shelter to landless poor inhabitants within the area of operation of the sugar factory. We agree with the conclusion reached by the Tribunal and the High Court that these receipts should not be treated as income of the assessee.As far as Sugar Cane Development Fund is concerned, the case of the Revenue seems to stand on a stronger footing. In the paper-book, we find a Circular dated 18th August, 1986 in which certain directive principles have been laid down to regulate the expenditure to be incurred out of Cane Development Fund. The items specified in the directive principles are (1) green manuring, (2) lift irrigation schemes, (3) distribution of cane seeds and (4) construction of new wells or deepening of old wells. The sugar factory is required to make sure that any project which they want to undertake out of the Cane Development Fund is technically and financially sound and to send the proposals in advance to the Directorate of Sugar for requisite sanction. The projects will directly benefit the members and augment the sugarcane production, which will incidentally help the Society in its manufacturing operations. The beneficiaries under the scheme are no other than the members of the Sugar Cooperative Society concerned and the advantage of enhanced production of sugarcane will ultimately be felt by the Society itself. Unlike the Area Development Fund, the monies out of Cane Development Fund are not spent for purposes unconnected with the growth and functioning of the sugar factory. The Tribunal was inclined to view it as a compulsory levy on the depositors collected by the Government through the agency of sugar factory. This approach in our view is wholly unsustainable and is in the realm of surmise. We do not also see any scope for the application of principle of diversion of income at source in the case of collections made towards Cane Development Fund. The amounts realized on this account undoubtedly reach the assessee as its income and is utilized by the assessee for the benefit of itself and its members. As already observed, the supervisory role of the Directorate of Sugar to ensure that the amount is properly utilized to promote the objectives with which the fund was formed, does not make a material difference on the quality and character of the receipt. We are therefore of the view that the deductions made out of cane price towards Cane Development Fund should be treated as the income of the assessee. We are, of course, not expressing any view whether it is a permissible deduction under the provisions of the Income Tax Act. If any such claim is made, the Tribunal shall examine the same when the matters are taken up by it to consider the issue of tax liability in relation to Area Development Fund.63. Though the item relating to collections towards Members Small Savings Scheme has also been included in the memorandum of appeal, no argument has been advanced on this aspect and therefore we need not deal with this.64. We therefore allow the appeals of the Commissioner of Income Tax partly in respect of the amounts collected by the respondents-Societies towards Cane Development Fund and Area Development Fund. We declare that the amount collected towards Cane Development Fund shall be treated as the income of the assessees and any claim for deduction shall be entertained and decided by the Tribunal. As regards the Area Development Fund, the matters are remitted to the Income Tax Appellate Tribunal, Pune Bench for fresh determination subject to the observations made in this judgment. In respect of other items, the appeals shall stand dismissed. | 1 | 11,612 | 2,142 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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funds like Chief Ministers Relief Fund, the amount collected towards Area Development Fund is retained by the sugar factory itself and utilized as per the guidelines issued by the Government or the National Cooperatives Development Corporation. The collective Body of the Society and its elected representatives take the decision as to how much amount has to be spent and for what purposes. The Director of Sugars or other designated official, no doubt acts in a supervisory capacity to oversee that the funds are properly utilized. On that account, it cannot be said that the collection is made by the Society as an agent of the Government or the proprietary interest in the funds is vested with the Government. The conclusion has been reached by the Tribunal mainly on the basis of requirement of prior sanction of the Director of Sugars for incurring the expenditure. Such restriction prescribed in the larger interest of the Society itself does not in any way detract from the fact that the Societies concerned do exercise dominion over the fund and deal with that money subject of course to the guidelines and restrictions evolved by the Government. The Tribunal failed to approach the question in proper perspective on an analysis of the relevant circulars and orders. The High Court too fell into an error in invoking the theory of diversion of income at source. The crux of the matter is that there has never been a diversion of income to a third party (Government) before it reached the assessee. The receipts in the form of the Area Development Fund always remained with the assessee. 61. It could still be contended, as has been contended by learned senior counsel appearing for the assessees, that the realizations made by the assessee towards Area Development Fund are impressed with a specific legal obligation to spend the monies for specified purposes which are unrelated to the business of the sugar factory and therefore such receipts cannot be treated as income of the assessee. The analogy of collection of amounts towards charity, as in the case of C.I.T. vs. Bijlee Cotton Mills [(1979) 1 SCC 496] , has been invoked to substantiate the argument. It is contended that the realizations towards Area Development Fund would more or less stand on the same footing as deposits. The controversy has not been approached in the light of the above arguments. We do not consider it appropriate to express our view for the first time, especially when the determination thereof may depend on the consideration of certain facts. We therefore leave this point open for fresh determination by the Tribunal. 62. As far as Sugar Cane Development Fund is concerned, the case of the Revenue seems to stand on a stronger footing. In the paper-book, we find a Circular dated 18th August, 1986 in which certain directive principles have been laid down to regulate the expenditure to be incurred out of Cane Development Fund. The items specified in the directive principles are (1) green manuring, (2) lift irrigation schemes, (3) distribution of cane seeds and (4) construction of new wells or deepening of old wells. The sugar factory is required to make sure that any project which they want to undertake out of the Cane Development Fund is technically and financially sound and to send the proposals in advance to the Directorate of Sugar for requisite sanction. The projects will directly benefit the members and augment the sugarcane production, which will incidentally help the Society in its manufacturing operations. The beneficiaries under the scheme are no other than the members of the Sugar Cooperative Society concerned and the advantage of enhanced production of sugarcane will ultimately be felt by the Society itself. Unlike the Area Development Fund, the monies out of Cane Development Fund are not spent for purposes unconnected with the growth and functioning of the sugar factory. The Tribunal was inclined to view it as a compulsory levy on the depositors collected by the Government through the agency of sugar factory. This approach in our view is wholly unsustainable and is in the realm of surmise. We do not also see any scope for the application of principle of diversion of income at source in the case of collections made towards Cane Development Fund. The amounts realized on this account undoubtedly reach the assessee as its income and is utilized by the assessee for the benefit of itself and its members. As already observed, the supervisory role of the Directorate of Sugar to ensure that the amount is properly utilized to promote the objectives with which the fund was formed, does not make a material difference on the quality and character of the receipt. We are therefore of the view that the deductions made out of cane price towards Cane Development Fund should be treated as the income of the assessee. We are, of course, not expressing any view whether it is a permissible deduction under the provisions of the Income Tax Act. If any such claim is made, the Tribunal shall examine the same when the matters are taken up by it to consider the issue of tax liability in relation to Area Development Fund.63. Though the item relating to collections towards Members Small Savings Scheme has also been included in the memorandum of appeal, no argument has been advanced on this aspect and therefore we need not deal with this.64. We therefore allow the appeals of the Commissioner of Income Tax partly in respect of the amounts collected by the respondents-Societies towards Cane Development Fund and Area Development Fund. We declare that the amount collected towards Cane Development Fund shall be treated as the income of the assessees and any claim for deduction shall be entertained and decided by the Tribunal. As regards the Area Development Fund, the matters are remitted to the Income Tax Appellate Tribunal, Pune Bench for fresh determination subject to the observations made in this judgment. In respect of other items, the appeals shall stand dismissed.65.
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purpose which cannot be overlooked. At any rate, the view taken by the Tribunal appears to be a reasonable view and the High Court need not have disturbed thatHigh Court relied on the decision of the same High Court in Shree Nirmal Commercial Ltd vs. C.I.T. [193 in ITR 694] in order to hold that the payment of interest on the deposited amount is not inconsistent with the amounting being a revenue receipt. We are of the view that the ratio of that decision cannot be pressed into service in the present case. On a consideration of the Scheme and Agreement under which non-refundable interest-bearing deposit was collected by the assessee-company, it was found as a matter of fact that "the deposit was the absolute property of the Company and the provision for payment of interest was only a device for showing the amount received in the course of trade as deposit." In the instant case, the plea of device, though raised faintly before the Tribunal, was not accepted. It rejected the argument that the provision in the bye-law 61-A providing for conversion of deposits into share-capital was a make believe affair and that the High Court in answer to question No.12 affirmed this finding.For the aforesaid reasons we conclude that the non-refundable and refundable deposits cannot be treated as the income of the assessee-Societies. The Civil Appeals filed by the assessees/Co-operative Sugar Factories are allowed without costs.As regards the Chief Ministers Relief Fund, Late Y.B. Chavan Memorial Fund and Hutment Fund, no serious attempt has been made to assail the order of the Tribunal/High Court, the obvious reason being that they were required to be and in fact being remitted to the Government or to the Trustees of late Y.B. Chavan Prathisthan. The assessee merely acted as an agent in collecting the amounts and remitting the same to the Government/Trustees. In truth and in substance, the money collected by the assessee was not reaching the assessee as part of its income, but the collection was made "for and on behalf of the person to whom it is payable", to borrow the language in CIT vs. Sheetal Das [41 ITR 367] . It had no manner of right or title over the said monies. The amount collected towards Hutment Fund stands on no different footing. It was meant to be handed over to Collector for the purpose of providing shelter to landless poor inhabitants within the area of operation of the sugar factory. We agree with the conclusion reached by the Tribunal and the High Court that these receipts should not be treated as income of the assessee.As far as Sugar Cane Development Fund is concerned, the case of the Revenue seems to stand on a stronger footing. In the paper-book, we find a Circular dated 18th August, 1986 in which certain directive principles have been laid down to regulate the expenditure to be incurred out of Cane Development Fund. The items specified in the directive principles are (1) green manuring, (2) lift irrigation schemes, (3) distribution of cane seeds and (4) construction of new wells or deepening of old wells. The sugar factory is required to make sure that any project which they want to undertake out of the Cane Development Fund is technically and financially sound and to send the proposals in advance to the Directorate of Sugar for requisite sanction. The projects will directly benefit the members and augment the sugarcane production, which will incidentally help the Society in its manufacturing operations. The beneficiaries under the scheme are no other than the members of the Sugar Cooperative Society concerned and the advantage of enhanced production of sugarcane will ultimately be felt by the Society itself. Unlike the Area Development Fund, the monies out of Cane Development Fund are not spent for purposes unconnected with the growth and functioning of the sugar factory. The Tribunal was inclined to view it as a compulsory levy on the depositors collected by the Government through the agency of sugar factory. This approach in our view is wholly unsustainable and is in the realm of surmise. We do not also see any scope for the application of principle of diversion of income at source in the case of collections made towards Cane Development Fund. The amounts realized on this account undoubtedly reach the assessee as its income and is utilized by the assessee for the benefit of itself and its members. As already observed, the supervisory role of the Directorate of Sugar to ensure that the amount is properly utilized to promote the objectives with which the fund was formed, does not make a material difference on the quality and character of the receipt. We are therefore of the view that the deductions made out of cane price towards Cane Development Fund should be treated as the income of the assessee. We are, of course, not expressing any view whether it is a permissible deduction under the provisions of the Income Tax Act. If any such claim is made, the Tribunal shall examine the same when the matters are taken up by it to consider the issue of tax liability in relation to Area Development Fund.63. Though the item relating to collections towards Members Small Savings Scheme has also been included in the memorandum of appeal, no argument has been advanced on this aspect and therefore we need not deal with this.64. We therefore allow the appeals of the Commissioner of Income Tax partly in respect of the amounts collected by the respondents-Societies towards Cane Development Fund and Area Development Fund. We declare that the amount collected towards Cane Development Fund shall be treated as the income of the assessees and any claim for deduction shall be entertained and decided by the Tribunal. As regards the Area Development Fund, the matters are remitted to the Income Tax Appellate Tribunal, Pune Bench for fresh determination subject to the observations made in this judgment. In respect of other items, the appeals shall stand dismissed.
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Rustom Cowasjee Cooper & Another Vs. Union of India | which go to make up the undertaking and omitting important items amounts to adopting an irrelevant principle in the determination of the value of the undertaking, and does not furnish compensation to the expropriated owner. 124. The Attorney-General contended that the total value of the undertaking of the named banks even calculated according to the method provided in Schedule II exceeded the total market value of the shares, and on that account there is no ground for holding that the law providing for compensation denies to the share-holders the guarantee of the right to compensation under Article 31 (2). But there is no evidence on this part of the case. 125. Compensation may be provided under a statute, otherwise than in the form of money: it may be given as equivalent of money, e. g., a bond. But in judging whether the law provides for compensation, the money value at the date of expropriation of what is given as compensation, must be considered. If the rate of interest compared with the ruling commercial rate is low, it will reduce the present value of the bond. The Constitution guarantees a right to compensation-an equivalent of the property expropriated and the right to compensation cannot be converted into a loan on terms which do not fairly compare with the prevailing commercial terms. If the statute in providing for compensation devises a scheme for payment of compensation by giving it in the form of bonds, and the present value of what is determined to be given is thereby substantially reduced, the statute impairs the guarantee of compensation. 126.A scheme for payment of compensation may take many forms. If the present value of what is given reasonably approximates to what is determined as compensation according to the principles provided by the statute, no fault may be found. But if the law seeks to convert the compensation determined into a forced loan, or to give compensation in the form of a bond of which the market value at the date of expropriation does not approximate the amount determined as compensation, the Court must consider whether what is given is in truth compensation which is inadequate, or that it is not compensation at all. Since we are of the view that the scheme in Schedule II of the Act suffers from the vice that it does not award compensation according to any recognized principles, we need not dilate upon this matter further. We need only observe that by giving to the expropriated owner compensation in bonds of the face-value of the amount determined maturing after many years and carrying a certain rate of interest, the constitutional guarantee is not necessarily complied with. If the market value of the bond is not approximately equal to the face-value, the expropriated owner may raise a grievance that the guarantee under Article 31 (2) is impaired. 127. We are of the view that by the method adopted for valuation of the undertaking, important items of assets have been excluded, and principles some of which are irrelevant and some not recognised are adopted. What is determined by the adoption of the method adopted in Schedule II does not award to the named banks compensation for loss of their undertaking.The ultimate result substantially impairs the guarantee of compensation, and on that account the Act is liable to be struck down. IV. Infringement of the guarantee of freedom of trade, commerce and intercourse under Article 301:- 128. In the view we have taken the provisions relating to determination and payment of compensation for compulsory acquisition of the undertaking of the named banks impair the guarantee under Article 31 (2) of the Constitution, we do not deem it necessary to decide whether Act 22 of 1969 violates the guarantee of freedom of trade, commerce and intercourse in respect of the (1) agency business; (2) business of guarantee and indemnity carried on by the named banks. V. Validity of the retrospective operation given to Act 22 of 1969 by S. 1 (2) and Section 27:- 129. The argument raised by Mr. Palkhivala that, even if the Act is within the competence of the Parliament and does not impair the fundamental rights under Articles 14, 19(1)(f) and (g), and 31(2) in their prospective operation, Section 1(2) and S. 27(2), (3) and (4) which give retrospective operation as from July 19, 1969, are invalid, need not also be considered. 130. Nor does the argument about the validity of sub-section (1) and (2) of Section 11 and Section 26 of the Act survive for consideration. 131. Accordingly we hold that- (a) the Act is within the legislative competence of the Parliament; but (b) it makes hostile discrimination against the named banks in that it prohibits the named banks from carrying on banking business, whereas other Banks -Indian and Foreign-are permitted to carry on banking business, and even new Banks may be formed which may engage in banking business; (c) it in reality restricts the named banks from carrying on business other than banking as defined in Section 5 (b) of the Banking Regulation Act, 1949; and (d) that the Act violates the guarantee of compensation under Article 31 (2) in that it provides for giving certain amounts determined according to principles which are not relevant in the determination of compensation of the undertaking of the named banks and by the method prescribed the amounts so declared cannot be regarded as compensation. 132.Section 4 of the Act is a kingpin in the mechanism of the Act. Section 4, 5 and 6 read with Schedule II provide for the statutory transfer and vesting of the undertaking of the named banks in the corresponding new banks and prescribe the method of determining compensation for expropriation of the undertaking. Those provisions are, in our judgment, void as they impair the fundamental guarantee under Article 31 (2). Sections 4, 5 and 6 and Schedule II are not severable from the rest of the Act. The Act must, in its entirety, be declared void. | 1[ds]17. The judgment of this Court in State Trading Corporation of India Ltd. v. Commercial Tax Officer, Visakhapatnam, (1964) 4 SCR 99 = (AIR 1963 SC 1811 ) has no bearing on this question. In that case in a petition under Article 32 of the Constitution the State Trading Corporation challenged the infringement of its right to hold property and to carry on business under Article 19 (1)(f) and (g) of the Constitution, and this Court opined that the Corporation not being a citizen was incompetent to enforce the rights guaranteed by Article 19. Nor has the judgment in Tata Engineering and Locomotive Co. Ltd. v. State of Bihar, (1964) 6 SCR 885 = (AIR 1965 SC 40 ) any bearing on the question arising in these petitions. In a petition under Article 32 of the Constitution filed by a Company challenging the levy of sales-tax by the state of Bihar, two shareholders were also impleaded as petitioners. It was urged on behalf of the shareholders that in substance the interests of the Company and of the shareholders were identical and the shareholders were entitled to maintain the petition. The Court rejected that contention, observing that what the Company could not achieve directly, it could not relying upon the doctrine of "lifting the veil" achieve indirectly. The petitioner seeks in the case to challenge the infringement of his own rights and not of the Banks of which he is a shareholder and a director and with which he as accounts - current and fixed deposit18. It was urged that in any event the guarantee of freedom of trade does not occur in Part III of the Constitution, and the petitioner is not entitled to maintain a petition for breach of that guarantee in this Court. But the petitioner does not seek by these petitions to enforce the guarantee of freedom of trade and commerce in Article 301: he claims that in enacting the Act the Parliament has violated a constitutional restriction imposed by Part XIII on its legislative power and in determining the extent to which his fundamental freedoms are impaired, the statute which the Parliament is incompetent to enact must be ignored19. It is not necessary to consider whether Article 31A (1)(d) of the Constitution bars the petitioners claim to enforce his rights as a director. The Act prima facie does not (though the Ordinance purported to) seek to extinguish or modify the right of the petitioner as a director:it seeks to take away expressly the right of the named Banks to carry on banking business, while reserving their right to carry on business other than banking. Assuming that he is not entitled to set up his right to enforce his guaranteed rights as a director, the petition will not still fail.The Preliminary objection raised by the Attorney-General against the maintainability of the petitions must fail27. The Ordinance has been repealed by Act 22 of 1969 and the question of its validity is now academic.It may assume significance only if we hold that Act 22 of 1969 is valid. Since the Act is in our view invalid for reasons hereinafter stated, we accede to the submission of the Attorney-General that we need express no opinion in this case on the extent of the jurisdiction of the Court to examine whether the condition relating to satisfaction of the President was fulfilled32. The argument raised by Mr. Setalvad, intervening on behalf of the State of Maharashtra and the State of Jammu and Kashmir, that the Parliament is competent to enact Act 22 of 1969, because the subject-matter of the Act is "with respect to" regulation of trading corporations and matters subsidiary and incidental thereto, and on that account is covered in its entirety by Entries 43 and 44 of List I of the Seventh Schedule, cannot be upheld. Entry 43 deals with incorporation, regulation and winding up of trading corporations including banking companies. Law regulating the business of a corporation is not a law with respect to regulation of a corporation. In List I entries expressly relating to trade and commerce are Entries 41 and 42. Again several entries in List I relate to activities commercial in character. Entry 45 "Banking"; Entry 46 "Bills of exchange, cheques, promissory notes and other like instruments", Entry 47 "Insurance"; Entry 48 "Stock exchanges and future markets"; Entry 49 "Patents, inventions and designs". There are several entries relating to activities commercial as well as non-commercial in List II - Entry 21 "Fisheries"; Entry 24 "Industries x x x"; Entry 25 "Gas and Gas works"; Entry 26 "Trade and commerce"; Entry 30 "Money-lending and money-lenders"; Entry 31 "Inns and Inn-keeping"; Entry 33 "Theatres and dramatic performances, cinemas etc.". We are unable to accede to the argument that the State Legislatures are competent to legislate in respect of the subject-matter of those entries only when the commercial activities are carried on by individuals and not when they are carried on by Corporations32-C. It is necessary to determine the true scope of "banking" in Entry 45 List I, the meaning of the expression "property", and the limitations on the power of the Parliament to legislate in respect of acquisition of property in Entry 42, List III. Matters not in contest may be eliminated. Power to legislate for setting up corporations to carry on banking and other business and to acquire, hold and dispose of property and to provide for administration of the corporations is conferred upon the Parliament by Entries 43, 44 and 45 of the first list. Power to enact that the named banks shall not carry on banking business (as defined in Section 5 (b) of the Banking Regulation Act) is incidental to the power to legislate in respect of banking. Power to legislate for determination of compensation and method of payment of compensation for compulsory acquisition of the assets of the named banks, in so far as it relates to banking business is also within the power of the Parliament33.The expression "banking" is not defined in any Indian statute except the Banking Regulation Act, 1949. It may be recalled that by Section 5 (b) of that Act "banking" means "the accepting for the purpose of lending or investment of deposits of money from the public repayable on demand or otherwise, and withdrawable by cheque, draft or otherwise". The definition did not include other commercial activities which a banking institution may engage in38.The legislative entry in List I of the Seventh Schedule is "Banking" and not "Banker" or "Banks". To include within the connotation of the expression "Banking" in Entry 45 of List I, power to legislate in respect of all commercial activities which a banker by the custom of bankers or authority of law engages in, would result in rewriting the Constitution. Investment of power to legislate on a designated topic covers all matters incidental to the topic. A legislative entry being expressed in a broad designation indicating the contour of plenary power must receive a meaning conducive to the widest amplitude, subject however to limitations inherent in the federal scheme which distributes legislative power between the Union and the constituent units. But the field of "banking" cannot be extended to include trading activities which not being incidental to banking encroach upon the substance of the entry "trade and commerce" in List II39. Rejection of the argument of the Attorney-General does not lend any practical support to the argument of Mr. Palkhivala that Act 22 of 1969, to the extent it makes provisions in respect of the undertaking of the named banks relating to non-banking business, is ultra vires the Parliament. In the first instance there is no evidence that the named banks were before July 19, 1969, carrying on non-banking business distinct and independent of the banking business, or that the banks held distinct assets for any non-banking business, apart from the assets of the banking business. Again by Act 22 of 1969 the corresponding banks are entitled to engage in business of banking and non-banking which the named banks were engaged in or competent to engage in prior to July 19, 1969, and the name banks are entitled to engage in business other than banking as defined in Section 5 (b) of the Banking Regulation Act, but not the business of banking. By enacting that the corresponding new banks may carry on business specified in Section 6 (1) of the Banking Regulation Act and that the named banks shall not carry on banking business as defined in Section 5 (b) of that Act, the impugned Act did not encroach upon any entry in the State List. By Section 15 (2) (e) of the impugned Act the named banks are expressly reserved the right to carry on business other than banking, and it is not claimed that thereby there is any encroachment upon the State List. Exercise of the power to legislate for acquisition of the undertaking of the named banks also does not trespass upon the State List41. Transfer of and vesting in the State Corporations of the entire undertaking of a going concern is contemplated in many Indian statutes: e.g, Indian Electricity Act, 1910, Sections 6, 7 and 7A; Air Corporation Act, 1953, Sections 16 and 17; Imperial Bank of India Act, 1920, Sections 3 and 4, State Bank of India Act, 1955, Section 6(2), (3) and (4); State Bank of India (Subsidiary Banks) Act, 1959; Banking Regulation Act, 1949, Section 36 AE: and Cotton Textile Companies Act, 1967, Ss. 5 (1) and (50 1 (6 (1)?) Power to legislate for acquisition of "property" in Entry 42, List III therefore, includes the power to legislate for acquisition of an undertaking. But, says Mr. Palkhivala, liabilities of the banks which are included in the connotation of the expression "undertaking" cannot be treated as "property". It is however the assets, rights and obligations of a going concern which constitute the undertaking; the obligations and liabilities of the business form an integral part of the undertaking, and for compulsory acquisition cannot be divorced from the assets, rights and privileges. The expression "property" in Entry 42, List III has a wide connotation, and it includes not only assets, but the organisation, liabilities and obligations of a going concern as a unit. A law may therefore, be enacted for compulsory acquisition of an undertaking as defined in Section 5 of Act 22 of 196942. The contention raised by Mr. Palkhivala that the Parliament is incompetent to legislate for acquisition of the named banks in so far as it relates to assets of the non-banking business fails for two reasons - (i) that there is no evidence that the named banks held any assets for any distinct non-banking business; and (ii) that the acquisition is not shown to fall within an entry in List II of the Seventh Schedule45. The constitutional scheme declares the right to property of the individual and then delimits it by two different provisions:Article 19 (5) authorizing the State to make laws imposing reasonable restrictions on the exercise of that right, and clause (1) and (2) of Article 31 recognizing the authority of the State to make laws for taking the property. Limitations under Article 19 (5) and Article 31 are not generically different, for the law authorizing the exercise of the power to take the property of an individual for a public purpose or to ensure the well-being of the community, and the law authorising the imposition of reasonable restrictions under Article 19 (5) are intended to advance the larger public interest. It is true that the guarantee against deprivation and compulsory acquisition operates in favour of all persons, citizens as well as non-citizens, whereas the positive declaration of the right to property guarantees the right to citizens. But a wider operation of the guarantee under Article 31 does not alter the true character of the right it protects.Article 19 (5) and Article 31 (1) and (2), in our judgment, operate to delimit the exercise of the right to hold property46. Under the Constitution, protection against impairment of the guarantee of fundamental rights is determined by the nature of the right, the interest of the aggrieved party and the degree of harm resulting from the State action. Impairment of the right of the individual and not the object of the State in taking the impugned action, is the measure of protection. To concentrate merely on power of the State and the object of the State action in exercising that power is therefore to ignore the true intent of the Constitution. In this Court, there is, however, a body of authority that the nature and extent of the protection of the fundamental rights is measured not by the operation of the State action upon the rights of the individual, but by its object. Thereby the constitutional scheme which makes the guaranteed rights subject to the permissible restrictions within their allotted fields fundamental got blurred and gave impetus to a theory that certain Articles of the Constitution enact a code dealing exclusively with matters dealt with therein,and the protection which an aggrieved person may claim is circumscribed by the object of the State action46. Under the Constitution, protection against impairment of the guarantee of fundamental rights is determined by the nature of the right, the interest of the aggrieved party and the degree of harm resulting from the State action. Impairment of the right of the individual and not the object of the State in taking the impugned action, is the measure of protection. To concentrate merely on power of the State and the object of the State action in exercising that power is therefore to ignore the true intent of the Constitution. In this Court, there is, however, a body of authority that the nature and extent of the protection of the fundamental rights is measured not by the operation of the State action upon the rights of the individual, but by its object. Thereby the constitutional scheme which makes the guaranteed rights subject to the permissible restrictions within their allotted fields fundamental got blurred and gave impetus to a theory that certain Articles of the Constitution enact a code dealing exclusively with matters dealt with therein,and the protection which an aggrieved person may claim is circumscribed by the object of the State action46-A.Protection of the right to property or personal freedom is most needed when there is an actual threat. To argue that State action which deprives a person permanently or temporarily of his right to property or personal freedom, operates to extinguish the right or the remedy is to reduce the guarantee to an empty platitude. Again to hold that the extent of, and the circumstances in which, the guarantee of protection is available depends upon the object of the State action, is to seriously erode its effectiveness. Examining the problem not merely in semantics but in the broader and more appropriate context of the constitutional scheme which aims at affording the individual the fullest protection of his basic rights and on that foundation to erect a structure of a truly democratic polity,the conclusion, in our judgment, is inevitable that the validity of the state action must be adjudged in the light of its operation upon the rights of the individual and groups of individuals in all their dimensions56. We have carefully considered the weighty pronouncements of the eminent Judge who gave shape to the concept that the extent of protection of important guarantees, such as the liberty of person, and right to property, depends upon the form and object of the State action, and not upon its direct operation upon the individuals freedom.But it is not the object of the authority making the law impairing the right of a citizen, nor the form of action taken that determines the protection he can claim: it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. It this be the true view and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of Legislature nor by the form of the action, but by its direct operation upon the individuals rights57. We are of the view that the theory that the object and form of the State action determine the extent of protection which the aggrieved party may claim is not consistent with the constitutional scheme. Each freedom has different dimensions. Article 19 (1) (f) enunciates the right to acquire, hold and dispose of property: Clause (5) of Article 19 authorizes imposition of restrictions upon the right. Article 31 assures the right to property and grants protection against the exercise of the authority of the State. Clause (5) of Article 19 and Clauses (1) and (2) of Article 31 prescribe restrictions upon State action, subject to which the right to property may be exercised.Article 19 (5) is a broad generalization dealing with the nature of limitations which may be placed by law on the right to property. The guarantees under Article 31 (1) and (2) arise out of the limitations imposed on the authority of the State by law to take over the individuals property.The true character of the limitations under the two provisions is not different. Clause (5) of Article 19 and columns (1) and (2) of Article 31 are parts of a single pattern. Article 19 (1) (f) enunciates the basic right to property of the citizens and Article 19 (5) and Clauses (1) (2) Article 31 deal with limitations which may be placed by law subject to which the rights may be exercised58-60. Limitations prescribed for ensuring due exercise of the authority of the State to deprive a person of his property and of the power to compulsorily acquire his property are, therefore, specific classes of limitations on the rights to property falling within Article 19 (1) (f). Property may be compulsorily acquired only for a public purpose. Where the law provides for compulsory acquisition of property for a public purpose it may be presumed that the acquisition or the law relating thereto imposes a reasonable restriction in the interest of the general public. If there is no public purpose to sustain compulsory acquisition, the law violates Article 31 (2). If the acquisition is for a public purpose, substantive reasonableness of the restriction which includes deprivation may, unless otherwise established, be presumed, but enquiry into reasonableness of the procedural provisions will not be excluded. For instance if a tribunal is authorised by an Act to determine compensation for property compulsorily acquired, without hearing the owner of the property, the Act would be liable to be struck down under Article 19 (1) (f)61. In dealing with the argument that Article 31 (2) is a complete code relating to infringement of the right to property by compulsory acquisition, and the validity of the law is not liable to be tested in the light of the reasonableness of the restrictions imposed thereby it is necessary to bear in mind the enunciation of the guarantee of fundamental rights which has taken different forms. In some cases it is an express declaration of a guaranteed right: Articles 29 (1), 30 (1), 26, 25 and 32; in others to ensure protection of individual rights they take specific forms of restrictions on State action -legislative or executive-Articles 14, 15, 16, 20, 21, 22 (1), 27 and 28; in some others, it takes the form of a positive declaration and simultaneously enunciates the restriction thereon: Articles 19 (1) and 19 (2) to (6); in some cases, it arises as an implication from the delimitation of the authority of the State, e. g., Articles 31 (1) and 31 (2); in still others, it takes the form of a general prohibition against the State as well as others: Articles 17, 23 and 24. The enunciation of right either express or by implication does not follow a uniform pattern. But one thread runs through them: they seek to protect the rights of the individual or groups of individuals against infringement of those rights within specific limits. Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields; they do not attempt to enunciate distinct rights62. We are therefore unable to hold that the challenge to the validity of the provision for acquisition is liable to be tested only on the ground of non-compliance with Article 31 (2). Article 31 (2) requires that property must be acquired for a public purpose and that it must be acquired under a law with characteristics set out in that Article. Formal compliance with the conditions under Art. 31 (2) is not sufficient to negative the protection of the guarantee of the right to property. Acquisition must be under the authority of a law and the expression "law" means a law which is within the competence of the Legislature and does not impair the guarantee of the rights in Part III.We are unable, therefore, to agree that Article 19 (1) (f) and 31 (2) are mutually exclusive62. We are therefore unable to hold that the challenge to the validity of the provision for acquisition is liable to be tested only on the ground of non-compliance with Article 31 (2). Article 31 (2) requires that property must be acquired for a public purpose and that it must be acquired under a law with characteristics set out in that Article. Formal compliance with the conditions under Art. 31 (2) is not sufficient to negative the protection of the guarantee of the right to property. Acquisition must be under the authority of a law and the expression "law" means a law which is within the competence of the Legislature and does not impair the guarantee of the rights in Part III.We are unable, therefore, to agree that Article 19 (1) (f) and 31 (2) are mutually exclusive63. The area of protection afforded against State action by the freedom under Article 19 (1) (f) and by the exercise of the power of the State to acquire property of the individual without his consent must still be reconciled. If property is compulsorily acquired for a public purpose, and the law satisfies the requirements of Articles 31 (2) and 31 (2A), the Court may readily presume that by the acquisition a reasonable restriction on the exercise of the right to hold property is imposed in the interests of the general public.But that is not because the claim to plead infringement of the fundamental right under Article 19 (1) (f) does not avail the owner; it is because the acquisition imposes a permissible restriction on the right of the owner of the property compulsorily acquired64. We have found it necessary to examine the rationale of the two lines of authority and determine whether there is anything in the Constitution which justifies this apparently inconsistent development of the law. In our judgment, the assumption in A. K. Gopalans case 1950 SCR 88 = (AIR 1950 SC 27 ) that certain articles in the Constitution exclusively deal with specific matters and determining whether there is infringement of the individuals guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct.We hold that the validity of "law" which authorises deprivation of property and "a law" which authorises compulsory acquisition of property for a public purpose must be adjudged by the application of the same test. A citizen may claim in an appropriate case that the law authorising compulsory acquisition of property imposes fetters upon his right to hold property which are not reasonable restrictions in the interests of the general public. It is immaterial that the scope for such challenge may be attenuated because of the nature of the law of acquisition which providing as it does for expropriation of property of the individual for public purpose may be presumed to impose reasonable restrictions in the interests of the general publicBy Section 4 the entire undertaking of each named bank vests in the Union, and the Bank is prohibited from engaging in the business of banking in India and even in a foreign country, except where by the laws of a foreign country banking business owned or controlled by Government cannot be carried on, the named bank will be entitled to continue the business in that country. The business which the named banks carried on was-(1) the business of banking as defined in Section 5 (b) of the Banking Regulation Act, 1949, and business incidental thereto; and (2) other business which by virtue of Section 6 (1) they were not prohibited from carrying on, though not part of or incidental to the business of banking. It may be recalled that by Act 22 of 1969 the named banks cannot engage in business of banking as defined in Section 5 (b) of the Banking Regulation Act, 1949, but may engage in other forms of business. By the Act, however, the entire undertaking of each named bank is vested in the new corporation set up with a name identical with the name of that Bank, and authorised to carry on banking business previously carried on by the named bank, and its managerial and other staff is transferred to the corresponding new bank.The newly constituted corresponding bank is entitled to engage in business described in Section 6 (1) of the Banking Regulation Act, and for that purpose to utilize the assets, goodwill and business connections of the existing bank71. The law which prohibits after July 19, 1969, the named banks from carrying on banking business, being a necessary incident of the right assumed by the Union, is not liable to be challenged because of Article 19 (6) (ii) in so far as it affects the right to carry on business71-A. There is no satisfactory proof in support of the plea that the enactment of Act 22 of 1969 was not in the larger interest of the nation, but to serve political ends, i.e. not with the object to ensure better banking facilities, or to make them available to a wider public, but only to take control over the deposits of the public with the major banks, and to use them as a political lever against industrialists who had built up industries by decades of industrial planing and careful management. It is true that social control legislation enacted by the Banking Laws (Amendment) Act 58 of 1968 was in operation and the named banks were subject to rigorous control which the Reserve Bank was competent to exercise and did in fact exercise. Granting that the objectives laid down by the Reserve Bank being carried out, it cannot be said that the Act was enacted in abuse of legislative power.Our attention was invited to a mass of evidence from the speeches of the Deputy Prime Minister, and of the Governor and the Deputy Governor of the Reserve Bank, and also extracts from the Reserve Bank Bulletins issued from time to time and other statistical information collected from official sources in support of the thesis of the petitioner that the performance of the named banks exceeded the targets laid down by the Reserve Bank on its directives; that the named banks had effectively complied with the requirements of the law; that they had served the diverse interests including small-scale sector, and had been instrumental in bringing about an increasing tempo of industrial and commercial activity; that they had discouraged speculative holding of commodities; and had followed essential priorities in the economic development of the nation coupled with a vigorous programme of branch development in the rural sector, brining about a considerable expansion in deposits, and large advances to the small-scale business and industry72. This Court is not the forum in which these conflicting claims may be debated.Whether there is a genuine need for banking facility in the rural areas, whether certain classes of the community are deprived of the benefit of the resources of the banking industry, whether administration by the Government of the commercial banking sector will not prove beneficial to the community and will lead to rigidity in the administration whether the Government administration will eschew the profit-motive,and even if it be eschewed, there will accrue substantial benefits to the public, whether an undue accent on banking as a means of social regeneration, especially in the backward areas, is a doctrinaire approach to a rational order of priorities for attaining the national objectives enshrined in our Constitution, and whether the policy followed by the Government in office or the policy propounded by its opponents may reasonably attain the national objectives are matters which have little relevance in determining the legality of the measure.It is again not for this Court to consider the relative merits of the different political theories or economic policies. The Parliament has under Entry 45 List I the power to legislate in respect of banking and other commercial activities of the named banks necessarily incidental thereto: it has the power to legislate for acquiring the undertaking of the named banks under Entry 42 List III. Whether by the exercise of the power vested in the Reserve Bank under the pre-existing laws results could be achieved which it is the object of the Act to achieve, is in our judgment, not relevant in considering whether the Act amounts to abuse of legislative power. This Court has the power to strike down a law on the ground of want of authority, but the Court will not sit in appeal over the policy of the Parliament in enacting a law. The Court cannot find fault with the Act merely on the ground that it is inadvisable to take over the undertaking of banks which, it is said by the petitioner, by thrift and efficient management had set up an impressive and efficient business organization serving large sectors of industry73. By Section 15 (2) (e) of the Act the Banks are entitled to engage in business other than banking. But by the provisions of the Act they are rendered practically incapable of engaging in any business. By the provisions of the Act, a named bank cannot even use its name, and the compensation which is to be given will, in the absence of agreement, be determined by the Tribunal, and paid in securities which will mature not before ten years. A named bank may, if it agrees to distribute among the shareholders the compensation which it may receive, be paid in securities an amount equal to half the paid-up share capital, but obviously the fund will not be available to the Bank. It is true that under Section 15 (3) of the Act the Central Government may authorise the corresponding new banks to make advances to the named banks for any of the purposes mentioned in Section 15 (2). But that is a matter which rests only upon the will of the Central Government and no right can be founded upon it74. Where restrictions imposed upon the carrying on of a business are so stringent that the business cannot in practice be carried on, the Court will regard the imposition of the restrictions as unreasonable76.If compensation paid is in such a form that it is not immediately available for restarting any business, declaration of the right to carry on business other than banking becomes an empty formality, when the entire undertaking of the named banks is transferred to and vests in the new banks together with the premises and the names of the banks are deprived of the services of its administrative and other staff77.The restriction imposed upon the right of the named banks to carry on "non-banking" business is, in our judgment, plainly unreasonable. No attempt is made to support the Act which while theoretically declaring the right of the named banks to carry on "non-banking" business makes it impossible in a commercial sense for the banks to carry on any business79. The Courts recognize in the Legislature some degree of elasticity in the matter of making a classification between persons, objects and transactions.Provided the classification is based on some intelligible ground, the Courts will not strike down that classification, because in the view of the Court it should have proceeded on some other ground or should have included the class selected for special treatment some other persons, objects or transactions which are not included by the Legislature. The Legislature is free to recognize the degree of harm and to restrict the operation of a law only to those cases where the need is the clearest. The Legislature need not extend the regulation of a law to all cases it may possibly reach, and may make a classification founded on practical grounds of convenience. Classification to be valid must, however, disclose a rational nexus with the object sought to be achieved by the law which makes the classification. Validity of a classification will be upheld only if that test is independently satisfied. The Court in examining the validity of a statute challenged as infringing the equality clause makes an assumption that there is a reasonable classification and that the classification has a rational relation to the object sought to be achieved by the statute80. By the definition of existing bank in Section 2 (d) of the Act, fourteen named banks in the First Schedule are, out of many commercial banks engaged in the business of banking, selected for special treatment, in that the undertaking of the named banks is taken over, they are prevented from carrying on in India and abroad banking business and the Act operates in practice to prevent those banks engaging in business other than bankingMr. Palkhivala has handed in a statement setting out the percentage return of dividend on market rates in 1968. The rate works out at more than 10 per cent in the case of the shares of Bank of Baroda, Central Bank of India, Dena Bank, Indian Bank, United Bank and United Commercial Bank; and at more than 9 per cent in the case of shares of Bank of India, Bank of Maharashtra, Canara Bank, Indian Bank, Indian Overseas Bank and United Bank of India.In the case of Allahabad Bank it worked out at 5 per cent, and in the case of shares of Punjab National Bank and Syndicate Bank the rates are not available. This statement is not challenged. Since the taking over of the undertaking, there has resulted a steep fall in the ruling market quotations of the shares of a majority of the named banks.The market quotations have slumped to less than 50 per cent in the case of Bank of India, Central Bank, Bank of Baroda and even at the quoted rates probably there are no transactions. Dividend may no longer be distributed, for the banks have no liquid assets and they are not engaged in any commercial activity. It may take many years before the compensation payable to the banks may even be finalized, and be available to the named banks for utilising it in any commercial venture open to the banks under the Act. Under the scheme of determination of compensation, the total amount payable to the banks will be a fraction of the value of their net assets, and that compensation will not be available to the Banks immediately82. The ground for selection of the 14 banks is that those banks held deposits, as shown in the return as on the last Friday of June 1969, furnished to the Reserve Bank under Section 27 of the Banking Regulation Act, 1949, of not less than rupees fifty crores84. In support of the plea that there is a reasonable relation between the differentia - ground for making the distinction between the named banks and the other banks - India and foreign - and the object of the Act it is urged that the policy of the Union is to control the concentration of private economic resources to ensure achievement of the directive principles of State policy, and for that purpose, selection has been made "with an eye, inter alia, to the magnitude and concentration of the economic resources of such enterprises for inclusion in such law as would be essential or substantially conducive to the achievement of the national objectives and policy." It is apparently claimed that the object of the Government - not of the statute - is to acquire ultimately all banking institutions, but the 14 named banks are selected for acquisition because they have "larger business and wider coverage" in comparison with other banks not selected, and had also larger organization, better managerial resources and employees better trained and equipped. These are primarily grounds for classification and not for explaining the relation between the classification and the object of the Act. But in the absence of any reliable data, we do not think it necessary to express an opinion on the question whether selection of the undertaking of some out of many banking institutions, for compulsory acquisition, is liable to be struck down as hostile discrimination, on the ground that there is no reasonable relation between the differentia and the object of the Act which cannot be substantially served even by the acquisition of the undertakings of all the banks out of which the selection is made85. It is claimed that the depositors with the named banks have also a grievance. Those depositors who had made long-term deposits, taking into account the confidence they had in the management of the banks and the service they rendered, are now called upon to trust the management of a statutory corporation not selected by them, without an opportunity of being placed in the same position in which they would have been if they were permitted to transfer their deposits elsewhere. The argument is based on several imponderables and does not require any detailed consideration86. But two other grounds in support of the plea of impairment of the guarantee of equality clause require to be noticed. The fourteen named banks are prohibited from carrying on banking business - a disability for which there is no rational explanation. Banks other than the named banks may carry on banking business in India and abroad: new banks may be floated for carrying on banking business, but the named banks are prohibited from carrying on banking business. Each named bank had, even as claimed on behalf of the Union, by its superior management established an extensive business organization, and each bank had deposits exceeding Rs. 50 crores. The undertakings of the banks are taken over and they are prohibited from doing banking business. In the affidavit filed on behalf of the Union no serious attempt is made to explain why the named banks should be specially selected for being subjected to this disability87. The petitioner also contended that the classification is made on a wholly irrational ground, viz., penalizing efficiency and good management, for the major fourteen banks had made a sustained effort and had exceeded the Reserve Bank target and had fully complied with the directives under the social control legislation. This, it is said, is a reversal of the policy underlying Section 36 AE of the Banking Regulation Act under which inefficient and recalcitrant banks are contemplated to be taken over by the Government. We need express no opinion on this part of the argument. But the petitioner is on firm ground in contending that when after acquiring the assets, undertaking, organization, goodwill and the names of the named banks they are prohibited from carrying on banking business, whereas other banks Indian as well as foreign - are permitted to carry on banking business, a flagrantly hostile discrimination is practised. Section 15 (2) of the Act which by the clearest implication prohibits the named banks from carrying on banking business is, therefore, liable to be struck down. It is immaterial whether the entire sub-section (2) is struck down or as suggested by the Attorney-General that only the words "other than the business of banking" in Section 15 (2) (e) be struck down. Again, in considering the validity of Section 15 (2) (e) in its relation to the guarantee of freedom to carry on business other than banking, we have already pointed out that the named banks are also, (though theoretically competent) in substance prohibited from carrying on non-banking business. For reasons set out by us for holding that the restriction is unreasonable, it must also be held that the guarantee of equality is impaired by preventing the named banks carrying on the non-banking business89. In the case before us we need not express any opinion on the question whether a composite undertaking of two or more distinct lines of business may be acquired where there is a public purpose for acquisition of the assets of one or more lines of business, but not in respect of all the lines of business. As we have already observed, there is no evidence that the named banks carried on non-banking business, distinct from banking business, and in respect of such non-banking business the banks owned distinct assets apart from the assets of the banking business90. The law providing for acquisition must again either fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be determined and given.The owner whose property is compulsorily acquired is guaranteed the right to receive compensation and the amount of compensation must either be fixed by the law or be determined according to the principles and in the manner specified by the law. The law which does not ensure the guarantee will, except where the grievance only is that the compensation provided by the law is inadequate, be declared void100. Both the lines of thought which converge in the ultimate result, support the view that the principle specified by the law for determination of compensation is beyond the pale of challenge, if it is relevant to the determination of compensation and is a recognised principle applicable in the determination of compensation for property compulsorily acquired and the principle is appropriate in determining the value of the class of property sought to be acquired. On the application of the view expressed in P. Vajravelu Mudaliars case, (1965) 1 SCR 614 = (AIR 1965 SC 1017 ) or in Shantilal Mangaldass case, AIR 1969 SC 634 , the Act, in our judgment, is liable to be struck down as it fails to provide to the expropriated banks compensation determined according to relevant principles. Section 4 of the Act transfers the undertaking of every named bank to and vests it in the corresponding new bank. Section 6(1) provides for payment of compensation for acquisition of the undertaking, and the compensation is to be determined in accordance with the principles specified in the Second Schedule. Section 6 (2) then provides that though separate valuations are made in respect of the several matters specified in Sch. II of the Act, the amount of compensation shall be deemed to be a single compensation. Compensation being the equivalent in terms of money of the property compulsorily acquired, the principle for determination of compensation is intended to award to the expropriated owner the value of the property acquired.The science of valuation of property recognizes several principles or methods for determining the value to be paid as compensation to the owner for loss of his property; there are different methods applicable to different classes of property in the determination of the value to be paid as recompense for loss of his property. A method appropriate to the determination of value of one class of property may be wholly inappropriate in determining the value of another class of property.If an appropriate method or principle for determination of compensation is applied, the fact that by the application of another principle which is also appropriate, a different value is reached, the Court will not be justified in entertaining the contention that out of the two appropriate methods, one more generous to the owner should have been applied by the Legislature101.We are unable to hold that a principle specified by the Parliament for determining compensation of the property to be acquired is conclusive. If that view be accepted, the Parliament will be invested with a charter of arbitrariness and by abuse of legislative process, the constitutional guarantee of the right to compensation may be severely impaired. The principle specified must be appropriate to the determination of compensation for the particular class of property sought to be acquired. If several principles are appropriate and one is selected for determination of the value of the property to be acquired, selection of that principle to the exclusion of other principles is not open to challenge, for the selection must be left to the wisdom of the Parliament102. The broad object underlying the principle of valuation is to award to the owner the equivalent of his property with its existing advantages and its potentialities. Where there is an established market for the property acquired the problem of valuation presents little difficulty. Where there is no established market for the property, the object of the principle of valuation must be to pay to the owner for what he has lost, including the benefit of advantages present as well as future, without taking into account the urgency of acquisition, the disinclination of the owner to part with the property, and the benefit which the acquirer is likely to obtain by the acquisition.Under the Land Acquisition Acts compensation paid is the value to the owner together with all its potentialities and its special adaptability if the land is peculiarly suitable for a particular use, if it gives an enhanced value at the date of acquisition103.The important methods of determination of compensation are - (i) market value determined from sales of comparable properties, proximate in time to the date of acquisition, similarly situate, and possessing the same or similar advantages and subject to the same or similar disadvantages.Market value is the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase; (ii) capitalization of the net annual profit out of the property at a rate equal in normal cases to the return from giltedged securities. Ordinarily value of the property may be determined by capitalizing the net annual value obtainable in the market at the date of the notice of acquisition, (iii) where the property is a house, expenditure likely to be incurred for constructing a similar house, and reduced by the depreciation for the number of years since it was constructed; (iv) principle of reinstatement, where it is satisfactorily established that reinstatement in some other place is bona fide intended, there being no general market for the property for the purpose for which it is devoted (the purpose being a public purpose) and would have continued to be devoted, but for compulsory acquisition. Here compensation will be assessed on the basis of reasonable cost of reinstatement; (v) when the property has outgrown its utility and it is reasonably incapable of economic use, it may be valued as land plus the break-up value of the structure. But the fact that the acquirer does not intend to use the property for which it is used at the time of acquisition and desires to demolish it or use it for other purpose is irrelevant; and (vi) the property to be acquired has ordinarily to be valued as a unit. Normally an aggregate of the value of different components will not be the value of the unit104. These are, however, not the only methods. The method of determining the value of property by the application of an appropriate multiplier to the net annual income or profit is a satisfactory method of valuation of lands with buildings, only if the land is fully developed, i.e., it has been put to full use legally permissible and economically justifiable, and the income out of the property is the normal commercial and not a controlled return or a return depreciated on account of special circumstances. If the property is not fully developed, or the return is not commercial the method may yield a misleading result106. Compensation to be determined under the Act is for acquisition of the undertaking, but the Act instead of providing for valuing the entire undertaking as a unit provides for determining the value of some only of the components, which constitute the undertaking, and reduced by the liabilities. It also provides different methods of determining compensation in respect of each such component. This method for determination of compensation is prima facie not a method relevant to the determination of compensation for acquisition of the undertaking. Aggregate of the value of components is not necessarily the value of the entirety of a unit of property acquired, especially when the property is a going concern, with an organized business. On that ground alone, acquisition of the undertaking is liable to be declared invalid, for it impairs the constitutional guarantee for payment of compensation for acquisition of property by law. Even if it be assumed that the aggregate value of the different components will be equal to the value of the undertaking of the named bank as a going concern the principles specified, in our judgment, do not give a true recompense to the banks for the loss of the undertaking107. The undertaking of a banking company taken over as a going concern would ordinarily include the goodwill and the value of the unexpired period of long-term leases in the prevailing conditions in urban areas. But good-will of the banks is not one of the items in the assets in the Schedule, and in Cl. (f) though provision is made for including a part of the premium paid in respect of leasehold properties proportionate to the unexpired period, no value of the leasehold interest for the unexpired period is given109. Business of banking thrives on its reputation for probity of its dealings, efficiency of the service it provides, courtesy and promptness of the staff, and above all the confidence it inspires among the customers for the safety of the funds entrusted.The Reserve Bank, it is true, exercises stringent control over the transactions which banks carry on in India. Existence of these powers and exercise thereof may and do ensure to a certain extent the safety of the founds entrusted to the Banks,But the business which a bank attracts still depends upon the confidence which the depositor reposes in the management.A bank is not like a grocers shop: a customer does not extend his patronage to a bank merely because it has a branch easily accessible to him. Outside the public sector, there are 50 Indian scheduled banks, 13 foreign banks, besides 16 non-scheduled banks. The deposits in the banks not taken over under the Act range between Rs. 400 crores and a few lakhs of rupees. Deposits attracted by the major private commercial banks are attributable largely to the personal goodwill of the management. The regulatory provisions of the Banking Companies Act and the control which the Reserve Bank exercises over the banks may to a certain extent reduce the chance of the resources of the bank being misused, but a banking company for its business still largely depends upon the reputation of its management. We are unable to agree with the contention raised in the Unions affidavit that a banking establishment has no goodwill, nor are we able to accept the plea raised by the Attorney General that the value of the goodwill of bank is insignificant and it may be ignored in valuing the undertaking as a going concern110. Under clause (f) of Schedule II provision is made for valuing a proportionate part of the premium paid in respect of all leasehold properties to the unexpired duration of the leases, but there is no provision made for payment of compensation for the unexpired period of the leases.Having regard to the present day conditions it is clear that with rent control on leases operating in various States the unexpired period of leases has also a substantial value111.The value determined by excluding important components of the undertaking, such as the goodwill and value of the unexpired period of leases, will not, in our judgment, be compensation for the undertakingUnder clause (a) of Part I-Assets - the amount of cash in hand and with the Reserve Bank and the State Bank of India (including foreign currency notes which shall be converted at the market rate of exchange) are liable to be included. Cash in hand is not an item which is capable of being compulsorily acquired, not because it is not property,but because taking over the cash and providing for acquisition thereof, compensation payable at some future date amounts to levying a "forced loan" in the guise of acquisition.This Court in State of Bihar v. Sir Kameshwar Singh of Darbhanga, 1952 SCR 889 = (AIR 1952 SC 252 ) held that cash and choses in action are not capable of compulsory acquisition. That view was repeated by this Court in Bombay Dyeing and Manufacturing Co., Ltd. v. State of Bombay, 1958 SCR 1122 = (AIR 1958 SC 328 ) and Ranojirao Shindes case, (1968) 3 SCR 489 = (AIR 1968 SC 1053 ).We do not propose to express our opinion on the question whether in adopting the method of determination of compensation, by aggregating the value of assets which constitute the undertaking, the rule that cash and choses in action are incapable of compulsory acquisition may be applied113. Under Item (e) the value of any land or buildings is one of the assets. The first Explanation provides that for the purpose of this clause (clause (e) ) "value" shall be deemed to be the market value of the land or buildings, but where such market value exceeds the "ascertained value" determined in the manner specified in Explanation 2, the value shall be deemed to mean such "ascertained value". The value of the land and buildings is therefore the market value or the "ascertained value" whichever is less. Under Explanation 2, clause (1) "ascertained value" in respect of buildings which are wholly occupied on the date of the commencement of the Act is twelve times the amount of the annual rent or the rent for which the building may reasonably be expected to be let from year to year reduced by certain specific items.This provision, in our judgment, does not lay down a relevant principle of valuation of buildings. In the first place, making a provision for payment of capitalised annual rental at twelve times the amount of rent cannot reasonably be regarded as payment of compensation having regard to the conditions prevailing in the money market. Capitalization of annual rental which is generally based on controlled rent under some State Acts at rates pegged down to the rates prevailing in 1940 and on the footing that investment in building yields 8 1/3 per cent. return furnishes a wholly misleading result which cannot be called compensation.Value of immovable property has spiralled during the last few years and the rental which is mostly controlled does not bear any reasonable relation to the economic return from property. If the building is partly occupied by the Bank itself and partly by a tenant, the ascertained value will be twelve times the annual rental received, and the rent for which the remaining part occupied by the Bank may reasonably be expected to be let out. By the Act the corresponding new banks take over vacant possession of the lands and buildings belonging to the named banks. There is in the present conditions considerable value attached to vacant business premises in urban areas. True compensation for vacant premises can be ascertained by finding out the market value of comparable premises at or about the time of the vesting of the undertaking and not by capitalising the rental - actual or estimated. Vacant premises have a considerably larger value than business premises which are occupied by tenants. The Act instead of taking into account the value of the premises as vacant premises adopted a method which cannot be regarded as relevant. Prima facie, this would not give any reliable basis for determining the compensation for the land and buildings114. Again in determining the compensation under clause (e), the annual rent is reduced by several outgoings and the balance is capitalized. The first item of deduction is one-sixth of the amount thereof on account of maintenance and repairs. Whether the building is old or new, whether it requires or does not requires maintenance or repairs 16 2/3 per cent. of the total amount of rent is liable to be deducted towards maintenance and repairs. The vice of items (v) and (vi) of clause (1) of Explanation 2 is that they provide for deduction of a capital charge out of the annual rental which according to no rational system of valuing property by capitalization of the rental method is admissible.Under item (v) where the building is subject to a mortgage or other capital charge, the amount of interest on such mortgage or charge, and under item (vi) where the building has been acquired, constructed, repaired, renewed or reconstructed with borrowed capital, the amount of any interest payable on such capital are liable to be deducted from the annual rental for determining the ascertained value. These encumbrances are also liable to be deducted under the head "liabilities". A simple illustration may suffice to pinpoint the inequity of the method. In respect of a building owned by a bank of the value of Rs. 10 lakhs and mortgaged for say Rs. 7,50,000 interest at the rate of 8 per cent (which may be regarded as the current commercial rate) would amount to Rs. 60,000.The estimated annual rental which would ordinarily not exceed Rs. 60,000 has under clause (e) to be reduced in the first instance by other outgoing. The assets would show a minus figure as value of the building, and on the liabilities side the entire amount of mortgage liability would be debited. The method provided by the Act permits the annual interest on the amount of the encumbrance to be deducted before capitalization, and the capitalized value is again reduced by the amount of the encumbrance. In effect, a single debt is, in determining the compensation debited twice, first in computing the value of assets, and again, in computing the liabilities115. We are unable to accept the argument raised by the Attorney-General that under the head "liabilities" in Part II only those mortgages or capital charges in respect of which the amount has fallen due are liable to be included on the liabilities side. Under the head "liabilities" the total amount of all outside liabilities existing at the commencement of the Act, and all contingent liabilities which the corresponding new bank may reasonably be expected to be required to meet out of its own resources on or after the date of commencement of the Act will have to be included. When even contingent liabilities are included in the total amount of all outside liabilities, a mortgage debt or capital charge must be taken into account in determining the liabilities by which the aggregate of the value of the assets is to be reduced even if the period of the mortgage or capital charge has not expired. The liability under a mortgage or capital charge exists whether the period stipulated under the deed creating the encumbrance has expired of not117. Under Clause (3) of Explanation 2, where there is open land which has no building erected thereon, or which is not appurtenant to any building, the value is to be determined "with reference to the prices at which sales or purchases of similar or comparable lands have been made during the period of three years immediately preceding the date of the commencement of" the Act. Whereas the value of the open land is to be the market value, the value of the land with building to be taken into account is the value determined by the method of capitalization of annual rent or market value whichever is less. The Explanation does not take into account whether the construction on the land fully develops the land, and the rental is economic118. We are, therefore, unable to hold that item (e) specifies a relevant principle for determination of compensation for lands and buildings.It is not disputed that the major Banks occupy their own buildings in important towns, and investments in buildings constitute a part of the assets of the Banks which cannot be treated as negligible. By providing a method of valuation of buildings which is not relevant the amount determined cannot be regarded as compensation120. Mr. Palkhivala urged that certain assets which do not appear in the books of account still have substantial value and they are omitted from consideration in computing the aggregate of the value of assets.Counsel said that every bank is permitted to have secret reserve and those secret reserves may not appear in the books of account of the banks. We are unable to accept that contention. A banking company is entitled to withhold from the balance-sheet its secret reserve, but there must be some account in respect of these secret reserves. The expression "books of the Bank" may not be equated with balance-sheets or the books of account only122. The Attorney-General contended that even if the goodwill of a banking company is of substantial value, and inclusion of the goodwill is not provided for, or the value of buildings and lands is not the market value or that there is a departure from recognized principles for determination of compensation, the deficiencies in the Act result merely in inadequate compensation within the meaning of Article 31 (2) of the Constitution and the Act cannot on that account be challenged as invalid.We are unable to agree with that contention. The constitution guarantees a right to compensation-an equivalent in money of the property compulsorily acquired. That is the basic guarantee. The law must therefore provide compensation, and for determining compensation relevant principles must be specified; if the principles are not relevant the ultimate value determined is not compensation123. The Attorney-General also contended that if in consequence of the adoption of the method of valuation, an amount determined as compensation is not illusory, the Courts have no jurisdiction to question the validity of the law, unless the law is expropriatory, for, in the ultimate analysis the grievance relates to the adequacy of compensation. He contended that the exclusion of one of the elements in fixing the compensation, or application of a principle which is not a recognized principle, results in inadequate price, and is not open to challenge, and relied in support upon the observations made in P. Vajravelu Mudaliars case, (1965) 1 SCR = (AIR 1965 SC 1017 ) (at p. 631 of SCR) = (at p. 1026 of AIR) which we have already quoted in another context in relation to the challenge to the validity of the Land Acquisition (Madras Amendment) Act, 1961, which excluded in determining compensation the potential value of the land. The Court held that exclusion of potential value amounted to giving inadequate compensation and was not a fraud on power. The principle of that case has no application when valuation of an undertaking is sought to be made by breaking it up into several heads of assets and important heads are excluded and others valued by the application of irrelevant principles, or principles of which the only claim for acceptance is their novelty.The Constitution guarantees that the expropriated owner must be given the value of his property, i. e., what may be regarded reasonably as compensation for loss of the property and that such compensation should not be illusory and not reached by the application of irrelevant principles. In our view, determination of compensation to be paid for the acquisition of an undertaking as a unit after awarding compensation for some items which go to make up the undertaking and omitting important items amounts to adopting an irrelevant principle in the determination of the value of the undertaking, and does not furnish compensation to the expropriated owner124. The Attorney-General contended that the total value of the undertaking of the named banks even calculated according to the method provided in Schedule II exceeded the total market value of the shares, and on that account there is no ground for holding that the law providing for compensation denies to the share-holders the guarantee of the right to compensation under Article 31 (2). But there is no evidence on this part of the case126.A scheme for payment of compensation may take many forms. If the present value of what is given reasonably approximates to what is determined as compensation according to the principles provided by the statute, no fault may be found. But if the law seeks to convert the compensation determined into a forced loan, or to give compensation in the form of a bond of which the market value at the date of expropriation does not approximate the amount determined as compensation, the Court must consider whether what is given is in truth compensation which is inadequate, or that it is not compensation at all. Since we are of the view that the scheme in Schedule II of the Act suffers from the vice that it does not award compensation according to any recognized principles, we need not dilate upon this matter further. We need only observe that by giving to the expropriated owner compensation in bonds of the face-value of the amount determined maturing after many years and carrying a certain rate of interest, the constitutional guarantee is not necessarily complied with. If the market value of the bond is not approximately equal to the face-value, the expropriated owner may raise a grievance that the guarantee under Article 31 (2) is impaired127. We are of the view that by the method adopted for valuation of the undertaking, important items of assets have been excluded, and principles some of which are irrelevant and some not recognised are adopted. What is determined by the adoption of the method adopted in Schedule II does not award to the named banks compensation for loss of their undertaking.The ultimate result substantially impairs the guarantee of compensation, and on that account the Act is liable to be struck down128. In the view we have taken the provisions relating to determination and payment of compensation for compulsory acquisition of the undertaking of the named banks impair the guarantee under Article 31 (2) of the Constitution, we do not deem it necessary to decide whether Act 22 of 1969 violates the guarantee of freedom of trade, commerce and intercourse in respect of the (1) agency business; (2) business of guarantee and indemnity carried on by the named banks129. The argument raised by Mr. Palkhivala that, even if the Act is within the competence of the Parliament and does not impair the fundamental rights under Articles 14, 19(1)(f) and (g), and 31(2) in their prospective operation, Section 1(2) and S. 27(2), (3) and (4) which give retrospective operation as from July 19, 1969, are invalid, need not also be considered130. Nor does the argument about the validity of sub-section (1) and (2) of Section 11 and Section 26 of the Act survive for consideration131. Accordingly we hold that(a) the Act is within the legislative competence of the Parliament; but(b) it makes hostile discrimination against the named banks in that it prohibits the named banks from carrying on banking business, whereas other Banks -Indian and Foreign-are permitted to carry on banking business, and even new Banks may be formed which may engage in banking business;(c) it in reality restricts the named banks from carrying on business other than banking as defined in Section 5 (b) of the Banking Regulation Act, 1949; and(d) that the Act violates the guarantee of compensation under Article 31 (2) in that it provides for giving certain amounts determined according to principles which are not relevant in the determination of compensation of the undertaking of the named banks and by the method prescribed the amounts so declared cannot be regarded as compensation132.Section 4 of the Act is a kingpin in the mechanism of the Act. Section 4, 5 and 6 read with Schedule II provide for the statutory transfer and vesting of the undertaking of the named banks in the corresponding new banks and prescribe the method of determining compensation for expropriation of the undertaking. Those provisions are, in our judgment, void as they impair the fundamental guarantee under Article 31 (2). Sections 4, 5 and 6 and Schedule II are not severable from the rest of the Act. The Act must, in its entirety, be declared void | 1 | 32,597 | 12,741 | ### Instruction:
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which go to make up the undertaking and omitting important items amounts to adopting an irrelevant principle in the determination of the value of the undertaking, and does not furnish compensation to the expropriated owner. 124. The Attorney-General contended that the total value of the undertaking of the named banks even calculated according to the method provided in Schedule II exceeded the total market value of the shares, and on that account there is no ground for holding that the law providing for compensation denies to the share-holders the guarantee of the right to compensation under Article 31 (2). But there is no evidence on this part of the case. 125. Compensation may be provided under a statute, otherwise than in the form of money: it may be given as equivalent of money, e. g., a bond. But in judging whether the law provides for compensation, the money value at the date of expropriation of what is given as compensation, must be considered. If the rate of interest compared with the ruling commercial rate is low, it will reduce the present value of the bond. The Constitution guarantees a right to compensation-an equivalent of the property expropriated and the right to compensation cannot be converted into a loan on terms which do not fairly compare with the prevailing commercial terms. If the statute in providing for compensation devises a scheme for payment of compensation by giving it in the form of bonds, and the present value of what is determined to be given is thereby substantially reduced, the statute impairs the guarantee of compensation. 126.A scheme for payment of compensation may take many forms. If the present value of what is given reasonably approximates to what is determined as compensation according to the principles provided by the statute, no fault may be found. But if the law seeks to convert the compensation determined into a forced loan, or to give compensation in the form of a bond of which the market value at the date of expropriation does not approximate the amount determined as compensation, the Court must consider whether what is given is in truth compensation which is inadequate, or that it is not compensation at all. Since we are of the view that the scheme in Schedule II of the Act suffers from the vice that it does not award compensation according to any recognized principles, we need not dilate upon this matter further. We need only observe that by giving to the expropriated owner compensation in bonds of the face-value of the amount determined maturing after many years and carrying a certain rate of interest, the constitutional guarantee is not necessarily complied with. If the market value of the bond is not approximately equal to the face-value, the expropriated owner may raise a grievance that the guarantee under Article 31 (2) is impaired. 127. We are of the view that by the method adopted for valuation of the undertaking, important items of assets have been excluded, and principles some of which are irrelevant and some not recognised are adopted. What is determined by the adoption of the method adopted in Schedule II does not award to the named banks compensation for loss of their undertaking.The ultimate result substantially impairs the guarantee of compensation, and on that account the Act is liable to be struck down. IV. Infringement of the guarantee of freedom of trade, commerce and intercourse under Article 301:- 128. In the view we have taken the provisions relating to determination and payment of compensation for compulsory acquisition of the undertaking of the named banks impair the guarantee under Article 31 (2) of the Constitution, we do not deem it necessary to decide whether Act 22 of 1969 violates the guarantee of freedom of trade, commerce and intercourse in respect of the (1) agency business; (2) business of guarantee and indemnity carried on by the named banks. V. Validity of the retrospective operation given to Act 22 of 1969 by S. 1 (2) and Section 27:- 129. The argument raised by Mr. Palkhivala that, even if the Act is within the competence of the Parliament and does not impair the fundamental rights under Articles 14, 19(1)(f) and (g), and 31(2) in their prospective operation, Section 1(2) and S. 27(2), (3) and (4) which give retrospective operation as from July 19, 1969, are invalid, need not also be considered. 130. Nor does the argument about the validity of sub-section (1) and (2) of Section 11 and Section 26 of the Act survive for consideration. 131. Accordingly we hold that- (a) the Act is within the legislative competence of the Parliament; but (b) it makes hostile discrimination against the named banks in that it prohibits the named banks from carrying on banking business, whereas other Banks -Indian and Foreign-are permitted to carry on banking business, and even new Banks may be formed which may engage in banking business; (c) it in reality restricts the named banks from carrying on business other than banking as defined in Section 5 (b) of the Banking Regulation Act, 1949; and (d) that the Act violates the guarantee of compensation under Article 31 (2) in that it provides for giving certain amounts determined according to principles which are not relevant in the determination of compensation of the undertaking of the named banks and by the method prescribed the amounts so declared cannot be regarded as compensation. 132.Section 4 of the Act is a kingpin in the mechanism of the Act. Section 4, 5 and 6 read with Schedule II provide for the statutory transfer and vesting of the undertaking of the named banks in the corresponding new banks and prescribe the method of determining compensation for expropriation of the undertaking. Those provisions are, in our judgment, void as they impair the fundamental guarantee under Article 31 (2). Sections 4, 5 and 6 and Schedule II are not severable from the rest of the Act. The Act must, in its entirety, be declared void.
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1
### Explanation:
Mudaliars case, (1965) 1 SCR = (AIR 1965 SC 1017 ) (at p. 631 of SCR) = (at p. 1026 of AIR) which we have already quoted in another context in relation to the challenge to the validity of the Land Acquisition (Madras Amendment) Act, 1961, which excluded in determining compensation the potential value of the land. The Court held that exclusion of potential value amounted to giving inadequate compensation and was not a fraud on power. The principle of that case has no application when valuation of an undertaking is sought to be made by breaking it up into several heads of assets and important heads are excluded and others valued by the application of irrelevant principles, or principles of which the only claim for acceptance is their novelty.The Constitution guarantees that the expropriated owner must be given the value of his property, i. e., what may be regarded reasonably as compensation for loss of the property and that such compensation should not be illusory and not reached by the application of irrelevant principles. In our view, determination of compensation to be paid for the acquisition of an undertaking as a unit after awarding compensation for some items which go to make up the undertaking and omitting important items amounts to adopting an irrelevant principle in the determination of the value of the undertaking, and does not furnish compensation to the expropriated owner124. The Attorney-General contended that the total value of the undertaking of the named banks even calculated according to the method provided in Schedule II exceeded the total market value of the shares, and on that account there is no ground for holding that the law providing for compensation denies to the share-holders the guarantee of the right to compensation under Article 31 (2). But there is no evidence on this part of the case126.A scheme for payment of compensation may take many forms. If the present value of what is given reasonably approximates to what is determined as compensation according to the principles provided by the statute, no fault may be found. But if the law seeks to convert the compensation determined into a forced loan, or to give compensation in the form of a bond of which the market value at the date of expropriation does not approximate the amount determined as compensation, the Court must consider whether what is given is in truth compensation which is inadequate, or that it is not compensation at all. Since we are of the view that the scheme in Schedule II of the Act suffers from the vice that it does not award compensation according to any recognized principles, we need not dilate upon this matter further. We need only observe that by giving to the expropriated owner compensation in bonds of the face-value of the amount determined maturing after many years and carrying a certain rate of interest, the constitutional guarantee is not necessarily complied with. If the market value of the bond is not approximately equal to the face-value, the expropriated owner may raise a grievance that the guarantee under Article 31 (2) is impaired127. We are of the view that by the method adopted for valuation of the undertaking, important items of assets have been excluded, and principles some of which are irrelevant and some not recognised are adopted. What is determined by the adoption of the method adopted in Schedule II does not award to the named banks compensation for loss of their undertaking.The ultimate result substantially impairs the guarantee of compensation, and on that account the Act is liable to be struck down128. In the view we have taken the provisions relating to determination and payment of compensation for compulsory acquisition of the undertaking of the named banks impair the guarantee under Article 31 (2) of the Constitution, we do not deem it necessary to decide whether Act 22 of 1969 violates the guarantee of freedom of trade, commerce and intercourse in respect of the (1) agency business; (2) business of guarantee and indemnity carried on by the named banks129. The argument raised by Mr. Palkhivala that, even if the Act is within the competence of the Parliament and does not impair the fundamental rights under Articles 14, 19(1)(f) and (g), and 31(2) in their prospective operation, Section 1(2) and S. 27(2), (3) and (4) which give retrospective operation as from July 19, 1969, are invalid, need not also be considered130. Nor does the argument about the validity of sub-section (1) and (2) of Section 11 and Section 26 of the Act survive for consideration131. Accordingly we hold that(a) the Act is within the legislative competence of the Parliament; but(b) it makes hostile discrimination against the named banks in that it prohibits the named banks from carrying on banking business, whereas other Banks -Indian and Foreign-are permitted to carry on banking business, and even new Banks may be formed which may engage in banking business;(c) it in reality restricts the named banks from carrying on business other than banking as defined in Section 5 (b) of the Banking Regulation Act, 1949; and(d) that the Act violates the guarantee of compensation under Article 31 (2) in that it provides for giving certain amounts determined according to principles which are not relevant in the determination of compensation of the undertaking of the named banks and by the method prescribed the amounts so declared cannot be regarded as compensation132.Section 4 of the Act is a kingpin in the mechanism of the Act. Section 4, 5 and 6 read with Schedule II provide for the statutory transfer and vesting of the undertaking of the named banks in the corresponding new banks and prescribe the method of determining compensation for expropriation of the undertaking. Those provisions are, in our judgment, void as they impair the fundamental guarantee under Article 31 (2). Sections 4, 5 and 6 and Schedule II are not severable from the rest of the Act. The Act must, in its entirety, be declared void
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State Of Madhya Pradesh & Ors Vs. Orient Paper Mills Ltd | sum as royalty computed at a certain rate per ton on the amount of coal raised and coke manufactured. It was contended on behalf of the assessee that the sums received as salami and royalty did not constitute income but were capital receipts, representing the price of the minerals removed. There was also a provision for minimum royalty which was pressed into service by the party. The Judicial Committee held that the royalty payable under the lease was not the price of the actual coal extracted but represented compensation which the lessees paid to the lessor for that species of occupation which the contract allowed and it was therefore income from other source within the meaning of the relevant Income-tax Act. We must point that the legal setting in which a question is considered colours the ratio of the case. The Judicial Committee was considering an issue arising under the Income-tax Act and, interpreting the clauses of a deed with particular terms, to ascertain whether the payments made thereunder fell within the meaning of income understood in its broadest connotation in England and in India. Construing, as we do, a special statute and a differently worded deed and the signification of the words used therein, we are unable to draw any legitimate instructional inferences from a decision contextually different, concerned with a different branch of law; and dealing with different issues although with seeming resemblance in superficial respects.Another decision which, perhaps, has some helpful reasoning, is by this Court in Badri Prasad [[1969] 2 S.C.R. 380]. We need not discuss the details of that case expect to point out that it has been recognised, in that ruling, that trees which are to be severed before sale or under the contract of sale are goods for the purposes of the Sale of Goods Act. On the facts of that case, property in the cut timber could pass to the plaintiff under the contract at the earliest when the trees were felled but before that happened the trees had vested in the State under an agrarian reform measure. The crutches of case-law are not always necessary in court. 8. While direct light on the legal situation present before us is not available from Badri Prasad [[1969] 2 S.C.R. 380] or Kamakshya Narain Singh [[1943] 11 I.T.R. 513 (P.C.)], there is not the slightest doubt that going by the definition of sale of goods under section 2(7) of the Sale of Goods Act and of section 2(g) of the M.G.S.T. Act, standing timber is movable property if under the contract of sale they are to be severed. But the severance must take place when the timber still vests in the contracting party. 9. Ultimately, the case before us has to be decided on the facts and the law which form the backdrop to the decision. We have already held that the crucial fact to be found before we can designate the transaction as sale of goods is to scan and see whether the lease deed really deals with sale of timer. We are clear that there is sale of bamboo and salai wood under the contract and, in the contemplation of the parties they are to be cut and severed, pursuant to the contract itself. It follows that the finding of the High Court on this point is correct. 10. The appeal deserves to be allowed on account of the statutory amendment. The Madhya Pradesh Legislature had taken great care and responded with prompt attention to deal with a situation where considerable revenue would be lost to it on account of inadequate expression of its intendment in the M.G.S.T. Act. A diligent and considered amendment has fulfilled the legislative purpose. Had the State lost the appeal before us on another point, that is, as to whether royalty was price for sale of goods, the whole amendatory effort would have been an exercise in futility or a legislative brutum fulmen. In view of our finding that there is a sale of goods under the contract, the State is entitled to succeed.Counsel for the respondent, when we briefly indicated our mind, and even otherwise by way of abundant caution, rightly urged that his client had a good case for reduction of the quantum of tax even if sales tax was payable by the forest department which could be shifted to the respondent by virtue of section 64A of the Sale of Goods Act. He prayed for an opportunity to establish that he was being called upon to foot a larger bill than was legally tenable. We regard this a reasonable request and, indeed, Shri Shroff, for the State has very rightly agreed with this prayer of the respondent. For one thing, the amending Bill whereby the liability was being de novo fastened was enacted into law after the judgment of the High Court. Read with section 82 of the Indian Forest Act, the amount was being recovered as if it were land revenue. This process deprived the respondent of his right to challenge the quantification of the tax. It is fair - and the State agrees to be fair - that the respondent should be enabled to prove his case that the sum claimed was much higher than could be legitimately recovered. Shri B. Sen brought to our notice that the rate of tax on sales to a registered dealer if the commodity was to be consumed within the State for manufacturing purposes was less than the general rate in view of section 8 of the Madhya Pradesh General Sales Tax Act. The appellant, on the other hand, was seeking to recover at the higher rate. Moreover, even the lesser rate varied over the years from 1 per cent to 2 per cent and on to 3 per cent. Thus the arithmetics of the case had also to be gone into before the actual sum due from the forest department to the sales tax department was fixed. More could not be exacted from the respondent. | 1[ds]From no dealer, no sales tax to no sale, no sales tax is the shift in the epicentre of the argument caused by an amendment to the sales tax statute legislated after and on account of the very judgment under appeal. Suffice it to say for the present, no sale, no sales tax is a legal truism.It may be mentioned right here that the respondent before us is not directly liable to pay sales tax, even assuming that the lease deed involves sale of goods. The forest department of the Government is admittedly a registered dealer for the relevant period, and it is claimed by the appellant-State that it was liable qua dealer to pay tax on sales of timber, and by virtue of section 64A of the Sale of Goods Act such sums, which became leviable only after the agreement was entered into in 1956, could be recovered from the purchaser-respondent. It is virtually admitted in this appeal, as stated earlier, that both parties are registered dealers under the relevant Sales Tax Act. Nor is it in dispute that if the appellant-forest department were liable to pay sales tax for the sales of timber which were alleged to have taken place, the respondent, in turn, would be liable to make good that sum in view of the plain provision in section 64A of the Sale of Goods Act. But to attract that provision there has to be sale of goods.3. The time is set true for stating the decisive statutory changes which occurred after the High Court ruled against the State, calculated to undo the disability discovered by that pronouncement. This development deserves attention as the sole point on which the State lost in the High Court, viz., that the forest department is not doing business, ceases to have relevance today on account of the amendment to the Madhya Pradesh General Sales Tax Act by the M.P.G.S.T. (Amendment and Validation) Act 13 of 1971. The definition of dealer and other related provisions were touched up and redefined in such manner that the finding on point No. (3) formulated by the High Court was effectively nullified. Indeed, the legislation is a sequel to the decision and has squarely undone the impediment in the way of the State collecting sales tax from the respondent. So long as that law holds good the States claim cannot be bowled out. Of course, Shri B. Sen, for the respondent, desired to challenge the vires of the amending Act, but the Presidential Proclamation during the Emergency, suspending the operation of article 14, handcuffs the respondent from seeking to strike down this legislation. When the Presidential Proclamation sterilising article 14 lapses, then it may be time enough to assail this law. So far as this appeal is concerned, article 14 is under eclipse and the ground of challenge unavailable. The amendatory provisions must therefore be held impregnable, on this score, and we proceed on that footing. Its post-Emergency validity will be decided, if attacked, at that time, since we leave that aspect untouched. To abbreviate the discussion, thanks to Act 13 of 1971, the forest department of the State shall be deemed to be dealer. If it is a dealer, the levy of sales tax from it is legal and the controversy on this score is silenced.Point No. (2) hinges on the result of point No. (1) and deserves no separate discussion.Section 64A of the Sale of Goods Act enables the seller, under certain circumstances, to recover, as sale price, any sales tax which the vendor has had to pay. So, if in the present case, the forest department of the State is liable to pay sales tax on the bamboo and salai wood cut and removed by the respondent, the claim to recover it from the buyer is good under the said section 64A.No doubt, the deed styles itself a lease.Sales tax is payable by a dealer. The forest department, by force of the statutory amendment, is admittedly a dealer. Such tax is computed on the turnover as defined in section 2(t) of the M.G.S.T. Act,true import of the document may be gathered from its terms, not from rulings on other documents. There is a serious limitation on the service of case-law in this area. It depends firstly on the actual issue in each case and the angles of vision adopted and, secondly, on the clauses, purposes and surrounding circumstances of each transaction.Royalty has a slight feudal flavour with a tell-tale demise relish, if we may say so, while price is a mercantile concept smacking of commercial relations.By the deed, the forest lands of the lessor are hereby demised. There are frequent references to the leased area. The period of the lease is stated to be a long 20 years, later substituted by 30 years. There is also reference to discharge of lease, royalties, compensation and other monies, suggestive of a demise rather than of a sale.There is also provision for renewal of the lease deed which savours, again, of a transaction of real property since renewals cannot obtain for sales.6. The face value of these features tends to fix the transaction as a lease but, lift the veil and feel the reality behindOf course, if in essence there is a sale of goods covered by the deed, we have to locate the taxing event which occurs when the title to the goods is transferred. The description of the document as a lease deed, the reference to royalty, the right to construction of buildings, etc., cannot hamper a contrary conclusion if there are luminous characteristics of a sale of goods, in what is but a lease deed in name.We are considerably impressed with this analysis. The upshot of the whole transactions is that, for a price fixed, bamboos and salai wood are permitted to be removed from the forest of the appellant by the respondent. For the exercise of the right under this contract, certain necessary licences are conceded. It is made perfectly plain that the possession of the land quo land is not given, and there is a foolproof provision that the rights of the lessees shall extend only to bamboos and salai woods within the leased area and nothing herein shall in any way be deemed to authorise the lessees to interfere with the working of the forest area ..... of other contractors of the said forest lands. Can there be a lease without exclusive possession of the lands ? Can there be a lease to A of lands when the only right is to cut certain species of timber above a certain height and according to stipulated conditions ? Can there be a lease of lands where similar right to cut timber from the same land co-exist in other contractors ? There are more circumstances than these; but we need not be exhaustive, especially when we agree with the conclusion reached by the High Court.We are satisfied that despite its description, the deed confers in truth and substance a right to cut and carry timber of specified species. Till the trees are cut, they remain the property of the owner, namely, the appellant. Once the trees are severed, the property passes. Royalty is a feudalistic euphemism for the price of the timber. We may also observe that the question before us is not so much as to what nomenclature would aptly describe the deed but as to whether the deed results in sale of trees they are cut. The answer to that question, as would appear from the above, has to be in the affirmative.7. Shri Sen relied heavily upon Raja Bahadur Kamakshya Narain Singh [[1943] 11 I.T.R. 513 (P.C.)]. That was a case under the income-tax law. The assessee there received large payments by way of royalty under various mining leases. The leases purported to be for 999 years and related to the coal-mining rights set out in the schedule to the leases. The lessees were to pay a sum by way of salami or premium and an annual sum as royalty computed at a certain rate per ton on the amount of coal raised and coke manufactured. It was contended on behalf of the assessee that the sums received as salami and royalty did not constitute income but were capital receipts, representing the price of the minerals removed. There was also a provision for minimum royalty which was pressed into service by the party. The Judicial Committee held that the royalty payable under the lease was not the price of the actual coal extracted but represented compensation which the lessees paid to the lessor for that species of occupation which the contract allowed and it was therefore income from other source within the meaning of the relevant Income-tax Act. We must point that the legal setting in which a question is considered colours the ratio of the case. The Judicial Committee was considering an issue arising under the Income-tax Act and, interpreting the clauses of a deed with particular terms, to ascertain whether the payments made thereunder fell within the meaning of income understood in its broadest connotation in England and in India. Construing, as we do, a special statute and a differently worded deed and the signification of the words used therein, we are unable to draw any legitimate instructional inferences from a decision contextually different, concerned with a different branch of law; and dealing with different issues although with seeming resemblance in superficial respects.Another decision which, perhaps, has some helpful reasoning, is by this Court in Badri Prasad [[1969] 2 S.C.R. 380]. We need not discuss the details of that case expect to point out that it has been recognised, in that ruling, that trees which are to be severed before sale or under the contract of sale are goods for the purposes of the Sale of Goods Act. On the facts of that case, property in the cut timber could pass to the plaintiff under the contract at the earliest when the trees were felled but before that happened the trees had vested in the State under an agrarian reform measure. The crutches of case-law are not always necessary in court8. While direct light on the legal situation present before us is not available from Badri Prasad [[1969] 2 S.C.R. 380] or Kamakshya Narain Singh [[1943] 11 I.T.R. 513 (P.C.)], there is not the slightest doubt that going by the definition of sale of goods under section 2(7) of the Sale of Goods Act and of section 2(g) of the M.G.S.T. Act, standing timber is movable property if under the contract of sale they are to be severed. But the severance must take place when the timber still vests in the contracting party.clear that there is sale of bamboo and salai wood under the contract and, in the contemplation of the parties they are to be cut and severed, pursuant to the contract itself. It follows that the finding of the High Court on this point is correct.10. The appeal deserves to be allowed on account of the statutory amendment. The Madhya Pradesh Legislature had taken great care and responded with prompt attention to deal with a situation where considerable revenue would be lost to it on account of inadequate expression of its intendment in the M.G.S.T. Act. A diligent and considered amendment has fulfilled the legislative purpose. Had the State lost the appeal before us on another point, that is, as to whether royalty was price for sale of goods, the whole amendatory effort would have been an exercise in futility or a legislative brutum fulmen. In view of our finding that there is a sale of goods under the contract, the State is entitled toWe regard this a reasonable request and, indeed, Shri Shroff, for the State has very rightly agreed with this prayer of the respondent. For one thing, the amending Bill whereby the liability was being de novo fastened was enacted into law after the judgment of the High Court. Read with section 82 of the Indian Forest Act, the amount was being recovered as if it were land revenue. This process deprived the respondent of his right to challenge the quantification of the tax. It is fair - and the State agrees to be fair - that the respondent should be enabled to prove his case that the sum claimed was much higher than could be legitimately recovered.Thus the arithmetics of the case had also to be gone into before the actual sum due from the forest department to the sales tax department was fixed. More could not be exacted from the respondentShri Shroff took up a point that when the forest department made a demand on the respondent and required him to furnish a declaration necessary to reduce the rate of tax, the latter ignored the request. This, according to him, had an impact on the eventual liability. We do not propose to investigate this aspect at the present stage but leave it to be raised by the State before the High Court. | 1 | 5,306 | 2,405 | ### 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:
sum as royalty computed at a certain rate per ton on the amount of coal raised and coke manufactured. It was contended on behalf of the assessee that the sums received as salami and royalty did not constitute income but were capital receipts, representing the price of the minerals removed. There was also a provision for minimum royalty which was pressed into service by the party. The Judicial Committee held that the royalty payable under the lease was not the price of the actual coal extracted but represented compensation which the lessees paid to the lessor for that species of occupation which the contract allowed and it was therefore income from other source within the meaning of the relevant Income-tax Act. We must point that the legal setting in which a question is considered colours the ratio of the case. The Judicial Committee was considering an issue arising under the Income-tax Act and, interpreting the clauses of a deed with particular terms, to ascertain whether the payments made thereunder fell within the meaning of income understood in its broadest connotation in England and in India. Construing, as we do, a special statute and a differently worded deed and the signification of the words used therein, we are unable to draw any legitimate instructional inferences from a decision contextually different, concerned with a different branch of law; and dealing with different issues although with seeming resemblance in superficial respects.Another decision which, perhaps, has some helpful reasoning, is by this Court in Badri Prasad [[1969] 2 S.C.R. 380]. We need not discuss the details of that case expect to point out that it has been recognised, in that ruling, that trees which are to be severed before sale or under the contract of sale are goods for the purposes of the Sale of Goods Act. On the facts of that case, property in the cut timber could pass to the plaintiff under the contract at the earliest when the trees were felled but before that happened the trees had vested in the State under an agrarian reform measure. The crutches of case-law are not always necessary in court. 8. While direct light on the legal situation present before us is not available from Badri Prasad [[1969] 2 S.C.R. 380] or Kamakshya Narain Singh [[1943] 11 I.T.R. 513 (P.C.)], there is not the slightest doubt that going by the definition of sale of goods under section 2(7) of the Sale of Goods Act and of section 2(g) of the M.G.S.T. Act, standing timber is movable property if under the contract of sale they are to be severed. But the severance must take place when the timber still vests in the contracting party. 9. Ultimately, the case before us has to be decided on the facts and the law which form the backdrop to the decision. We have already held that the crucial fact to be found before we can designate the transaction as sale of goods is to scan and see whether the lease deed really deals with sale of timer. We are clear that there is sale of bamboo and salai wood under the contract and, in the contemplation of the parties they are to be cut and severed, pursuant to the contract itself. It follows that the finding of the High Court on this point is correct. 10. The appeal deserves to be allowed on account of the statutory amendment. The Madhya Pradesh Legislature had taken great care and responded with prompt attention to deal with a situation where considerable revenue would be lost to it on account of inadequate expression of its intendment in the M.G.S.T. Act. A diligent and considered amendment has fulfilled the legislative purpose. Had the State lost the appeal before us on another point, that is, as to whether royalty was price for sale of goods, the whole amendatory effort would have been an exercise in futility or a legislative brutum fulmen. In view of our finding that there is a sale of goods under the contract, the State is entitled to succeed.Counsel for the respondent, when we briefly indicated our mind, and even otherwise by way of abundant caution, rightly urged that his client had a good case for reduction of the quantum of tax even if sales tax was payable by the forest department which could be shifted to the respondent by virtue of section 64A of the Sale of Goods Act. He prayed for an opportunity to establish that he was being called upon to foot a larger bill than was legally tenable. We regard this a reasonable request and, indeed, Shri Shroff, for the State has very rightly agreed with this prayer of the respondent. For one thing, the amending Bill whereby the liability was being de novo fastened was enacted into law after the judgment of the High Court. Read with section 82 of the Indian Forest Act, the amount was being recovered as if it were land revenue. This process deprived the respondent of his right to challenge the quantification of the tax. It is fair - and the State agrees to be fair - that the respondent should be enabled to prove his case that the sum claimed was much higher than could be legitimately recovered. Shri B. Sen brought to our notice that the rate of tax on sales to a registered dealer if the commodity was to be consumed within the State for manufacturing purposes was less than the general rate in view of section 8 of the Madhya Pradesh General Sales Tax Act. The appellant, on the other hand, was seeking to recover at the higher rate. Moreover, even the lesser rate varied over the years from 1 per cent to 2 per cent and on to 3 per cent. Thus the arithmetics of the case had also to be gone into before the actual sum due from the forest department to the sales tax department was fixed. More could not be exacted from the respondent.
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timber of specified species. Till the trees are cut, they remain the property of the owner, namely, the appellant. Once the trees are severed, the property passes. Royalty is a feudalistic euphemism for the price of the timber. We may also observe that the question before us is not so much as to what nomenclature would aptly describe the deed but as to whether the deed results in sale of trees they are cut. The answer to that question, as would appear from the above, has to be in the affirmative.7. Shri Sen relied heavily upon Raja Bahadur Kamakshya Narain Singh [[1943] 11 I.T.R. 513 (P.C.)]. That was a case under the income-tax law. The assessee there received large payments by way of royalty under various mining leases. The leases purported to be for 999 years and related to the coal-mining rights set out in the schedule to the leases. The lessees were to pay a sum by way of salami or premium and an annual sum as royalty computed at a certain rate per ton on the amount of coal raised and coke manufactured. It was contended on behalf of the assessee that the sums received as salami and royalty did not constitute income but were capital receipts, representing the price of the minerals removed. There was also a provision for minimum royalty which was pressed into service by the party. The Judicial Committee held that the royalty payable under the lease was not the price of the actual coal extracted but represented compensation which the lessees paid to the lessor for that species of occupation which the contract allowed and it was therefore income from other source within the meaning of the relevant Income-tax Act. We must point that the legal setting in which a question is considered colours the ratio of the case. The Judicial Committee was considering an issue arising under the Income-tax Act and, interpreting the clauses of a deed with particular terms, to ascertain whether the payments made thereunder fell within the meaning of income understood in its broadest connotation in England and in India. Construing, as we do, a special statute and a differently worded deed and the signification of the words used therein, we are unable to draw any legitimate instructional inferences from a decision contextually different, concerned with a different branch of law; and dealing with different issues although with seeming resemblance in superficial respects.Another decision which, perhaps, has some helpful reasoning, is by this Court in Badri Prasad [[1969] 2 S.C.R. 380]. We need not discuss the details of that case expect to point out that it has been recognised, in that ruling, that trees which are to be severed before sale or under the contract of sale are goods for the purposes of the Sale of Goods Act. On the facts of that case, property in the cut timber could pass to the plaintiff under the contract at the earliest when the trees were felled but before that happened the trees had vested in the State under an agrarian reform measure. The crutches of case-law are not always necessary in court8. While direct light on the legal situation present before us is not available from Badri Prasad [[1969] 2 S.C.R. 380] or Kamakshya Narain Singh [[1943] 11 I.T.R. 513 (P.C.)], there is not the slightest doubt that going by the definition of sale of goods under section 2(7) of the Sale of Goods Act and of section 2(g) of the M.G.S.T. Act, standing timber is movable property if under the contract of sale they are to be severed. But the severance must take place when the timber still vests in the contracting party.clear that there is sale of bamboo and salai wood under the contract and, in the contemplation of the parties they are to be cut and severed, pursuant to the contract itself. It follows that the finding of the High Court on this point is correct.10. The appeal deserves to be allowed on account of the statutory amendment. The Madhya Pradesh Legislature had taken great care and responded with prompt attention to deal with a situation where considerable revenue would be lost to it on account of inadequate expression of its intendment in the M.G.S.T. Act. A diligent and considered amendment has fulfilled the legislative purpose. Had the State lost the appeal before us on another point, that is, as to whether royalty was price for sale of goods, the whole amendatory effort would have been an exercise in futility or a legislative brutum fulmen. In view of our finding that there is a sale of goods under the contract, the State is entitled toWe regard this a reasonable request and, indeed, Shri Shroff, for the State has very rightly agreed with this prayer of the respondent. For one thing, the amending Bill whereby the liability was being de novo fastened was enacted into law after the judgment of the High Court. Read with section 82 of the Indian Forest Act, the amount was being recovered as if it were land revenue. This process deprived the respondent of his right to challenge the quantification of the tax. It is fair - and the State agrees to be fair - that the respondent should be enabled to prove his case that the sum claimed was much higher than could be legitimately recovered.Thus the arithmetics of the case had also to be gone into before the actual sum due from the forest department to the sales tax department was fixed. More could not be exacted from the respondentShri Shroff took up a point that when the forest department made a demand on the respondent and required him to furnish a declaration necessary to reduce the rate of tax, the latter ignored the request. This, according to him, had an impact on the eventual liability. We do not propose to investigate this aspect at the present stage but leave it to be raised by the State before the High Court.
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S. Krishnan And Others Vs. The State Of Madras(And Other Petitions)Union Of India--In | on an erroneous assumption that the Clause confers legislative power on Parliament. The ambit of the legislative powers of Parliament is continued in Art. 245 of the Constitution read with the entries in Sch. 7. Art. 22 of the Constitution restricts those powers to a certain extent. It does not enlarge them. Cl. (7), however, cuts down these restrictions to a Certain extent. Parliament having power to make the law has also the power to alter or amend it, if it so chooses. It is difficult to assent to the proposition of the learned counsel that if a person is detained according to a law that existed at the time of his detention, then in regard to him it is that and that law alone which matters and any change in the law, even if it has retrospective effect cannot effect him any manner whatever.26. The next point canvassed before us was that the Constitution does not envisage detention for an indefinite period that it is obligatory on Parliament to provide a maximum period for detention of a person under a law of preventive detention. In my opinion, this argument again is not sound. Emphasis was laid on the proviso to Art. 22 (4) (a) which enacts that nothing in the Sub-Clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub--Cl. (b) of Cl. (7), and it was urged that the word may in Art. 22 (7) must be read in the sense of must and as having a compulsory force inasmuch as the enactment authorizes Parliament to prescribe by law a maximum period for detention, for the advancement of justice and for public good, or for the benefit of persons subjected to preventive detention. Reference was made to Maxwell on Interpretation of Statutes (9th Edn., page 246) and to the well-known case of Julius v. Bishop of Oxford,(1880) 5 A. C. 214. Lord Cairns in that case observed as follows:"Where a power is deposited with a public officer for the purpose of being used for the benefit of persons that power ought to be exercised."In my opinion, Cl. (7) of Art. 22 as already pointed out, in its true concept to a certain degree restricts the measure of the fundamental right contained in Cl. (4) (a) and in this context the rule referred to by Maxwell has no application whatever. Moreover, the provision in the Constitution is merely an enabling one and it is well settled that in an enabling Act words of a permissive nature cannot be given a compulsory meaning (Vide Craies on Statute Law, p. 254). Be that as it may, the point is no longer open as it has been concluded by the majority decision in Gopalans case,1950 S. C. R. 88. The learned Chief Justice at p. 119 of the report observed as follows:"Sub--Cl.(b) is permissive. It is not obligatory on the Parliament to prescribe any maximum period. It was argued that this gives the Parliament a right to allow a person to be detained indefinitely. If that construction is correct, it springs out of the words of Sub--Cl. (7) itself and the Court cannot help in the matter.Nothing said by Mr. Nambiar is sufficient to persuade me to take a different view of the matter than was taken in Gopalans case,1950 S. C. R. 88. It may be pointed out that Parliament may well have thought that it was unnecessary to fix any maximum period of detention in the new statute which was of a temporary nature and whose own tenure of life was limited to one year. Such temporary statutes cease to have any effect after they expire, they automatically come to an end at the expiry of the period for which they have been enacted and nothing further can be done under them. The detention of the petitioners, therefore is bound to come to an end automatically with the life of the statute and in these circumstances Parliament may well have thought that it would be wholly unnecessary to legislate and provide a maximum period of detention for those detained under this law.27. The last point argued by Mr. Nambiar that the provisions of the amended Act contravene the provisions of Art. 21 of the Constitution does not impress me. The expression "procedure established by law" was considered by the majority in Gopalans case,1950 S. C. R. 88 as meaning procedure prescribed by law. The petitioners have been detained in accordance with the procedure prescribed by the amended statute and their detention, therefore, is in accordance with procedure prescribed by law. The contention of Mr. Nambiar that they are governed by the procedure contained in S. 12 of Act Iv [4) of 1950 as that was the procedure at the time when initially they were detained is, in my opinion, unsound. It is open to Parliament to change the procedure by enacting and law and that procedure becomes the procedure established by law within the meaning of that expression in Art. 21 of the Constitution. Further, the present detention of the petitioners / being by virtue of s. 12 of the amended Act a new detention under the amended Act, the procedure prescribed by the amended Act is the procedure established by law within the meaning of Art. 21.28. For the reasons given above, in my opinion, the Preventive Detention Amendment Act, 1951 is a valid statute and the provisions impugned by Mr. Nambiar do not contravene the Constitution and the petitioners are not entitled to their release merely on the ground that the period of one year mentioned in S. 12 of Act Iv [4] of 1950 has expired.29. On the merits of the petitions, it was urged (1) that the grounds supplied to then were vague and insufficient to enable them to make a proper representation a (2) that their detention was mala fide and on political and party considerations. There is no force whatever in these contentions. | 0[ds]But this fiction cannot obscure the fact that in the case of the petitioners more than three months had elapsed from the date of their arrest without any Advisory Board making a report on their detention and it is, of course, not possible for the Advisory Board now provided for in such cases to Sub-mit its report before the expiration of that period, with the result that their detention contravened Art. 22 (4)(a). No doubt the detention up to the commencement of the new Act was lawful under S.12 of the old Act, as it was in accordance with Sub--Cl. (b) of Cl, (4) of Art. 22, but that could not make the petitioners continued detention any the less a violation of Art. 22 (4) (a) after the deletion of old S. 12. It is a fallacy to treat what was a lawful detention under Sub--Cl. (b) as being no detention at all for purposes of Sub-- Cl. (a). Detention is a hard physical fact, and the total period of detention of the petitioners having far exceeded three months without an Advisory Board having reported within three months that there were sufficient grounds therefor, it could not lawfully be continued under22 (4) (a). Constitutional provisions regarding fundamental rights cannot be circumvented by resorting to legala question of vires, the intention of the Legislature is immaterial, and I agree that a provision for an Advisory Board is not a hallmark which stamps a preventive detention law as one necessarily falling within Sub-.Cl. (a) of Cl. (4), so as to make its constitutional validity determinable exclusively with reference to the requirements of that Sub--Clause. The law could still be upheld if it fulfilled the conditions laid down in Sub-- Cl. (b) of Cl.contention is devoid of Substance. The new Act can, in my opinion, be regarded as a law made Substantially in accordance with Sub-Cls. (a) and (b) of Cl. (7). According to the majority view in Gopalans case, Sub-. Cl. (a) of Cl. (7) being an enabling provision, the word and should be understood in a disjunctive sense. The combined effect of Ss. 9 (2) (a) and 12 (1) is to provide, in a certain Class of cases, namely, where detention orders were in force at the commencement of the new Act, that the persons concerned could be detained for a period longer than three months if an Advisory Board reports that there are sufficient grounds for detention within ten weeks from the commencement of the new Act, that is to say, without obtaining the opinion of an Advisory Board before the expiration of the three months from the commencement of the detention as provided in Sub--Cl. (a) of Cl. (4). And, although the new Act does not in express terms prescribe in and separate provision any maximum period as such for which any person may in any Class or Classes of cases be detained, it fixes, by extending the duration of the old Act till 1-4-1952, an over- all time-limit beyond which preventive detention under the Act cannot be continued. The general rule in regard to a temporary statue is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it willipso facto terminate as soon as the statute expires (Craies on Statutes, Edn. 4, p. 347). Preventive detention which would but for the Act authorising it, be a continuing wrong, cannot, therefore, be continued beyond the expiry of the Act itself. The new Act thus in Sub-stance prescribes a maximum period of detention under it by providing that it shall cease to have effect on a specified date. It seems to me, therefore, that S. 9 (2)(a) and S. 12 (1) of the new Act Substantially satisfy the requirements of Sub--Cl. (b) of Cl. (4) of Art. 22, and cannot be declared unconstitutional andargument is that the discretionary power given to the appropriate Govt. under that Sub-section to continue the detention "for such period as it thinks fit" authorises preventive detention for an indefinite period, which is contrary to the provisions of Art. 22 (4).But, if, as already observed the new Act is to be in force only up to 1-4-1952 and no detention under the Act can continue thereafter, the discretionary power could be exercised only Subject to that over all limit. The objection, therefore, fails, | 0 | 7,022 | 893 | ### 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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on an erroneous assumption that the Clause confers legislative power on Parliament. The ambit of the legislative powers of Parliament is continued in Art. 245 of the Constitution read with the entries in Sch. 7. Art. 22 of the Constitution restricts those powers to a certain extent. It does not enlarge them. Cl. (7), however, cuts down these restrictions to a Certain extent. Parliament having power to make the law has also the power to alter or amend it, if it so chooses. It is difficult to assent to the proposition of the learned counsel that if a person is detained according to a law that existed at the time of his detention, then in regard to him it is that and that law alone which matters and any change in the law, even if it has retrospective effect cannot effect him any manner whatever.26. The next point canvassed before us was that the Constitution does not envisage detention for an indefinite period that it is obligatory on Parliament to provide a maximum period for detention of a person under a law of preventive detention. In my opinion, this argument again is not sound. Emphasis was laid on the proviso to Art. 22 (4) (a) which enacts that nothing in the Sub-Clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub--Cl. (b) of Cl. (7), and it was urged that the word may in Art. 22 (7) must be read in the sense of must and as having a compulsory force inasmuch as the enactment authorizes Parliament to prescribe by law a maximum period for detention, for the advancement of justice and for public good, or for the benefit of persons subjected to preventive detention. Reference was made to Maxwell on Interpretation of Statutes (9th Edn., page 246) and to the well-known case of Julius v. Bishop of Oxford,(1880) 5 A. C. 214. Lord Cairns in that case observed as follows:"Where a power is deposited with a public officer for the purpose of being used for the benefit of persons that power ought to be exercised."In my opinion, Cl. (7) of Art. 22 as already pointed out, in its true concept to a certain degree restricts the measure of the fundamental right contained in Cl. (4) (a) and in this context the rule referred to by Maxwell has no application whatever. Moreover, the provision in the Constitution is merely an enabling one and it is well settled that in an enabling Act words of a permissive nature cannot be given a compulsory meaning (Vide Craies on Statute Law, p. 254). Be that as it may, the point is no longer open as it has been concluded by the majority decision in Gopalans case,1950 S. C. R. 88. The learned Chief Justice at p. 119 of the report observed as follows:"Sub--Cl.(b) is permissive. It is not obligatory on the Parliament to prescribe any maximum period. It was argued that this gives the Parliament a right to allow a person to be detained indefinitely. If that construction is correct, it springs out of the words of Sub--Cl. (7) itself and the Court cannot help in the matter.Nothing said by Mr. Nambiar is sufficient to persuade me to take a different view of the matter than was taken in Gopalans case,1950 S. C. R. 88. It may be pointed out that Parliament may well have thought that it was unnecessary to fix any maximum period of detention in the new statute which was of a temporary nature and whose own tenure of life was limited to one year. Such temporary statutes cease to have any effect after they expire, they automatically come to an end at the expiry of the period for which they have been enacted and nothing further can be done under them. The detention of the petitioners, therefore is bound to come to an end automatically with the life of the statute and in these circumstances Parliament may well have thought that it would be wholly unnecessary to legislate and provide a maximum period of detention for those detained under this law.27. The last point argued by Mr. Nambiar that the provisions of the amended Act contravene the provisions of Art. 21 of the Constitution does not impress me. The expression "procedure established by law" was considered by the majority in Gopalans case,1950 S. C. R. 88 as meaning procedure prescribed by law. The petitioners have been detained in accordance with the procedure prescribed by the amended statute and their detention, therefore, is in accordance with procedure prescribed by law. The contention of Mr. Nambiar that they are governed by the procedure contained in S. 12 of Act Iv [4) of 1950 as that was the procedure at the time when initially they were detained is, in my opinion, unsound. It is open to Parliament to change the procedure by enacting and law and that procedure becomes the procedure established by law within the meaning of that expression in Art. 21 of the Constitution. Further, the present detention of the petitioners / being by virtue of s. 12 of the amended Act a new detention under the amended Act, the procedure prescribed by the amended Act is the procedure established by law within the meaning of Art. 21.28. For the reasons given above, in my opinion, the Preventive Detention Amendment Act, 1951 is a valid statute and the provisions impugned by Mr. Nambiar do not contravene the Constitution and the petitioners are not entitled to their release merely on the ground that the period of one year mentioned in S. 12 of Act Iv [4] of 1950 has expired.29. On the merits of the petitions, it was urged (1) that the grounds supplied to then were vague and insufficient to enable them to make a proper representation a (2) that their detention was mala fide and on political and party considerations. There is no force whatever in these contentions.
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But this fiction cannot obscure the fact that in the case of the petitioners more than three months had elapsed from the date of their arrest without any Advisory Board making a report on their detention and it is, of course, not possible for the Advisory Board now provided for in such cases to Sub-mit its report before the expiration of that period, with the result that their detention contravened Art. 22 (4)(a). No doubt the detention up to the commencement of the new Act was lawful under S.12 of the old Act, as it was in accordance with Sub--Cl. (b) of Cl, (4) of Art. 22, but that could not make the petitioners continued detention any the less a violation of Art. 22 (4) (a) after the deletion of old S. 12. It is a fallacy to treat what was a lawful detention under Sub--Cl. (b) as being no detention at all for purposes of Sub-- Cl. (a). Detention is a hard physical fact, and the total period of detention of the petitioners having far exceeded three months without an Advisory Board having reported within three months that there were sufficient grounds therefor, it could not lawfully be continued under22 (4) (a). Constitutional provisions regarding fundamental rights cannot be circumvented by resorting to legala question of vires, the intention of the Legislature is immaterial, and I agree that a provision for an Advisory Board is not a hallmark which stamps a preventive detention law as one necessarily falling within Sub-.Cl. (a) of Cl. (4), so as to make its constitutional validity determinable exclusively with reference to the requirements of that Sub--Clause. The law could still be upheld if it fulfilled the conditions laid down in Sub-- Cl. (b) of Cl.contention is devoid of Substance. The new Act can, in my opinion, be regarded as a law made Substantially in accordance with Sub-Cls. (a) and (b) of Cl. (7). According to the majority view in Gopalans case, Sub-. Cl. (a) of Cl. (7) being an enabling provision, the word and should be understood in a disjunctive sense. The combined effect of Ss. 9 (2) (a) and 12 (1) is to provide, in a certain Class of cases, namely, where detention orders were in force at the commencement of the new Act, that the persons concerned could be detained for a period longer than three months if an Advisory Board reports that there are sufficient grounds for detention within ten weeks from the commencement of the new Act, that is to say, without obtaining the opinion of an Advisory Board before the expiration of the three months from the commencement of the detention as provided in Sub--Cl. (a) of Cl. (4). And, although the new Act does not in express terms prescribe in and separate provision any maximum period as such for which any person may in any Class or Classes of cases be detained, it fixes, by extending the duration of the old Act till 1-4-1952, an over- all time-limit beyond which preventive detention under the Act cannot be continued. The general rule in regard to a temporary statue is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it willipso facto terminate as soon as the statute expires (Craies on Statutes, Edn. 4, p. 347). Preventive detention which would but for the Act authorising it, be a continuing wrong, cannot, therefore, be continued beyond the expiry of the Act itself. The new Act thus in Sub-stance prescribes a maximum period of detention under it by providing that it shall cease to have effect on a specified date. It seems to me, therefore, that S. 9 (2)(a) and S. 12 (1) of the new Act Substantially satisfy the requirements of Sub--Cl. (b) of Cl. (4) of Art. 22, and cannot be declared unconstitutional andargument is that the discretionary power given to the appropriate Govt. under that Sub-section to continue the detention "for such period as it thinks fit" authorises preventive detention for an indefinite period, which is contrary to the provisions of Art. 22 (4).But, if, as already observed the new Act is to be in force only up to 1-4-1952 and no detention under the Act can continue thereafter, the discretionary power could be exercised only Subject to that over all limit. The objection, therefore, fails,
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Sardarmal Lalwani Vs. State of Madhya Pradesh & Others | the land on or about the date of acquisition, by virtue of the provisions of S. 3 of the Land Acquisition (M. P. Amendment) Act, 1959. 5. It is alleged inter alia that Bhopal was made Capital of Madhya Pradesh on November 1, 1956. We were referred to the report of the States Reorganisation Commission, 1955. Para 486 (page 132) states:"486. The new State, which can appropriately be described, as Madhya Pradesh, will be a compact unit. It will bring almost the whole of Bundalkhand and Baghelkhand under one administration. Jabalpur will be situated at a central place in this unit and has or will soon have some important facilities like water supply and availability of electrical power. It will, in our opinion be a suitable capital." This report was submitted on September 30, 1955. It is quite clear from this para that on the date of the report the proposed capital was Jabalpur and there could thus be no speculation in land before the announcement of Bhopal as capital. 6. In view of these facts, it is submitted in ground (viii) of the petition that the impugned Act violates Art. 14 of the Constitution as there is no rational classification on the basis of which the prices of Bhopal area have not been determined by the principle by which the market prices of other places would be determined." It is further submitted that there can be no rational basis to differentiate between Bhopal and other areas for award of compensation merely because Bhopal was made Capital. The theory that in view of Capital, there were speculative prices at Bhopal and the prices at any given time might not reflect the real price, is neither rational nor reasonable." It also alleged that the date, October 1, 1955, is an arbitrary date for the purpose of fixing the market value. 7. The only reply given to this ground is contained in para 21 of the counter affidavit on behalf of the State wherein it is stated:"With reference to ground (viii), of the petition, I deny that the Amendment Act infringes any fundamental right of the petitioner and in particular Article 14 of the Constitution" 8. The learned Advocate General was unable to point out to us any material to show that there was any expectation or speculation on or about the Ist October, 1955 that Bhopal would be the Capital of Madhya Pradesh. If this fact had been established, it may have been reasonable to have fixed the date for the purpose of determining the market value as Ist October 1955. 9. But this does not mean that for all time to come for any land acquired by the State for a capital, the date of announcement of the Capital would be the relevant date. In this case, the acquisition was in 1962 and prices may have risen not only because of speculative dealings but because of general increase in prices throughout the State. 10. In Satish Kumar v. State of M. P., AIR 1961 Madh Pra 280 the Madhya Pradesh High Court upheld the validity of the impugned Act. The High Court justified the basis to differentiate the land located in Bhopal area thus:"In support of this difference, it has been averred in the return filed by the State that in the reorganisation of the States, which was a political exigency, the fixation of the Capital at Bhopal was "an accident" not due to any economic or industrial. reasons; that when it was decided to locate the Capital of the State in the under-developed town, there was heavy speculation in land prices, and that, therefore, these artificially inflated prices could not be taken as a proper basis for fixing, the real market-value of the property. The amendments themselves indicate that it was because of the location of the Capital at Bhopal that they had to be made. Now, it cannot be denied that whenever a capital or a big industry is located in a town or even in a city, land values are suddenly pushed up by prospective sellers and the increase in them during the interregnum between the date when it is known that the town will become more important and the date of acquisition of land may not represent its real value. The prospect of acquisition of vast areas of private lands in connection with a capital or industrial project in town always gives rise to speculative dealings in lands in the town. When such speculative dealings occur it is not unreasonable and improper to compute the market-value of the land with reference to a date proximate to the date of acquisition so as to exclude speculative rise in determining the market value of the land. On the material on record it is impossible for us to hold that in this case there has been a discrimination in the matter of compensation between land acquired in Bhopal area and other areas in the State. The classification between land in Bhopal area and other parts of the State is with reason and reasonable, and is for the purpose of enabling the State to acquire land at a reasonable price in Bhopal for the construction of the Capital. In our view, the amendments are not hit by Article 14 of the Constitution." 11. With respect, the High Court has not examined the question of the validity of the reason for fixing the relevant date as October 1, 1955. There is no material on the record to show that on October 1, 1955, it was known that Bhopal may be the Capital of the State or that there was speculation because of this fact. 12. We have in the judgment delivered in Nagpur Improvement Trust v. Vithal Rao, Civil Appeal No. 2139 of 1968, D/- 11-12-1972 = (reported in AIR 1973 SC 689 ) examined Art. 14 and its implications as far as land acquisition is concerned. In our view, in the light of that judgment, the petition must be allowed. | 1[ds]The learned Advocate General was unable to point out to us any material to show that there was any expectation or speculation on or about the Ist October, 1955 that Bhopal would be the Capital of Madhya Pradesh. If this fact had been established, it may have been reasonable to have fixed the date for the purpose of determining the market value as Ist October 19559. But this does not mean that for all time to come for any land acquired by the State for a capital, the date of announcement of the Capital would be the relevant date. In this case, the acquisition was in 1962 and prices may have risen not only because of speculative dealings but because of general increase in prices throughout the State10. In Satish Kumar v. State of M. P., AIR 1961 Madh Pra 280 the Madhya Pradesh High Court upheld the validity of the impugned Act. The High Court justified the basis to differentiate the land located in Bhopal area thus:"In support of this difference, it has been averred in the return filed by the State that in the reorganisation of the States, which was a political exigency, the fixation of the Capital at Bhopal was "an accident" not due to any economic or industrial. reasons; that when it was decided to locate the Capital of the State in the under-developed town, there was heavy speculation in land prices, and that, therefore, these artificially inflated prices could not be taken as a proper basis for fixing, the real market-value of the propertyThe amendments themselves indicate that it was because of the location of the Capital at Bhopal that they had to be made. Now, it cannot be denied that whenever a capital or a big industry is located in a town or even in a city, land values are suddenly pushed up by prospective sellers and the increase in them during the interregnum between the date when it is known that the town will become more important and the date of acquisition of land may not represent its real valueThe prospect of acquisition of vast areas of private lands in connection with a capital or industrial project in town always gives rise to speculative dealings in lands in the town. When such speculative dealings occur it is not unreasonable and improper to compute the market-value of the land with reference to a date proximate to the date of acquisition so as to exclude speculative rise in determining the market value of the landOn the material on record it is impossible for us to hold that in this case there has been a discrimination in the matter of compensation between land acquired in Bhopal area and other areas in the State. The classification between land in Bhopal area and other parts of the State is with reason and reasonable, and is for the purpose of enabling the State to acquire land at a reasonable price in Bhopal for the construction of the Capital. In our view, the amendments are not hit by Article 14 of the Constitution."With respect, the High Court has not examined the question of the validity of the reason for fixing the relevant date as October 1, 1955. There is no material on the record to show that on October 1, 1955, it was known that Bhopal may be the Capital of the State or that there was speculation because of this fact12. We have in the judgment delivered in Nagpur Improvement Trust v. Vithal Rao, Civil Appeal No. 2139 of 1968, D/- 11-12-1972 = (reported in AIR 1973 SC 689 ) examined Art. 14 and its implications as far as land acquisition is concerned. In our view, in the light of that judgment, the petition must be allowed. | 1 | 1,703 | 684 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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the land on or about the date of acquisition, by virtue of the provisions of S. 3 of the Land Acquisition (M. P. Amendment) Act, 1959. 5. It is alleged inter alia that Bhopal was made Capital of Madhya Pradesh on November 1, 1956. We were referred to the report of the States Reorganisation Commission, 1955. Para 486 (page 132) states:"486. The new State, which can appropriately be described, as Madhya Pradesh, will be a compact unit. It will bring almost the whole of Bundalkhand and Baghelkhand under one administration. Jabalpur will be situated at a central place in this unit and has or will soon have some important facilities like water supply and availability of electrical power. It will, in our opinion be a suitable capital." This report was submitted on September 30, 1955. It is quite clear from this para that on the date of the report the proposed capital was Jabalpur and there could thus be no speculation in land before the announcement of Bhopal as capital. 6. In view of these facts, it is submitted in ground (viii) of the petition that the impugned Act violates Art. 14 of the Constitution as there is no rational classification on the basis of which the prices of Bhopal area have not been determined by the principle by which the market prices of other places would be determined." It is further submitted that there can be no rational basis to differentiate between Bhopal and other areas for award of compensation merely because Bhopal was made Capital. The theory that in view of Capital, there were speculative prices at Bhopal and the prices at any given time might not reflect the real price, is neither rational nor reasonable." It also alleged that the date, October 1, 1955, is an arbitrary date for the purpose of fixing the market value. 7. The only reply given to this ground is contained in para 21 of the counter affidavit on behalf of the State wherein it is stated:"With reference to ground (viii), of the petition, I deny that the Amendment Act infringes any fundamental right of the petitioner and in particular Article 14 of the Constitution" 8. The learned Advocate General was unable to point out to us any material to show that there was any expectation or speculation on or about the Ist October, 1955 that Bhopal would be the Capital of Madhya Pradesh. If this fact had been established, it may have been reasonable to have fixed the date for the purpose of determining the market value as Ist October 1955. 9. But this does not mean that for all time to come for any land acquired by the State for a capital, the date of announcement of the Capital would be the relevant date. In this case, the acquisition was in 1962 and prices may have risen not only because of speculative dealings but because of general increase in prices throughout the State. 10. In Satish Kumar v. State of M. P., AIR 1961 Madh Pra 280 the Madhya Pradesh High Court upheld the validity of the impugned Act. The High Court justified the basis to differentiate the land located in Bhopal area thus:"In support of this difference, it has been averred in the return filed by the State that in the reorganisation of the States, which was a political exigency, the fixation of the Capital at Bhopal was "an accident" not due to any economic or industrial. reasons; that when it was decided to locate the Capital of the State in the under-developed town, there was heavy speculation in land prices, and that, therefore, these artificially inflated prices could not be taken as a proper basis for fixing, the real market-value of the property. The amendments themselves indicate that it was because of the location of the Capital at Bhopal that they had to be made. Now, it cannot be denied that whenever a capital or a big industry is located in a town or even in a city, land values are suddenly pushed up by prospective sellers and the increase in them during the interregnum between the date when it is known that the town will become more important and the date of acquisition of land may not represent its real value. The prospect of acquisition of vast areas of private lands in connection with a capital or industrial project in town always gives rise to speculative dealings in lands in the town. When such speculative dealings occur it is not unreasonable and improper to compute the market-value of the land with reference to a date proximate to the date of acquisition so as to exclude speculative rise in determining the market value of the land. On the material on record it is impossible for us to hold that in this case there has been a discrimination in the matter of compensation between land acquired in Bhopal area and other areas in the State. The classification between land in Bhopal area and other parts of the State is with reason and reasonable, and is for the purpose of enabling the State to acquire land at a reasonable price in Bhopal for the construction of the Capital. In our view, the amendments are not hit by Article 14 of the Constitution." 11. With respect, the High Court has not examined the question of the validity of the reason for fixing the relevant date as October 1, 1955. There is no material on the record to show that on October 1, 1955, it was known that Bhopal may be the Capital of the State or that there was speculation because of this fact. 12. We have in the judgment delivered in Nagpur Improvement Trust v. Vithal Rao, Civil Appeal No. 2139 of 1968, D/- 11-12-1972 = (reported in AIR 1973 SC 689 ) examined Art. 14 and its implications as far as land acquisition is concerned. In our view, in the light of that judgment, the petition must be allowed.
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1
### Explanation:
The learned Advocate General was unable to point out to us any material to show that there was any expectation or speculation on or about the Ist October, 1955 that Bhopal would be the Capital of Madhya Pradesh. If this fact had been established, it may have been reasonable to have fixed the date for the purpose of determining the market value as Ist October 19559. But this does not mean that for all time to come for any land acquired by the State for a capital, the date of announcement of the Capital would be the relevant date. In this case, the acquisition was in 1962 and prices may have risen not only because of speculative dealings but because of general increase in prices throughout the State10. In Satish Kumar v. State of M. P., AIR 1961 Madh Pra 280 the Madhya Pradesh High Court upheld the validity of the impugned Act. The High Court justified the basis to differentiate the land located in Bhopal area thus:"In support of this difference, it has been averred in the return filed by the State that in the reorganisation of the States, which was a political exigency, the fixation of the Capital at Bhopal was "an accident" not due to any economic or industrial. reasons; that when it was decided to locate the Capital of the State in the under-developed town, there was heavy speculation in land prices, and that, therefore, these artificially inflated prices could not be taken as a proper basis for fixing, the real market-value of the propertyThe amendments themselves indicate that it was because of the location of the Capital at Bhopal that they had to be made. Now, it cannot be denied that whenever a capital or a big industry is located in a town or even in a city, land values are suddenly pushed up by prospective sellers and the increase in them during the interregnum between the date when it is known that the town will become more important and the date of acquisition of land may not represent its real valueThe prospect of acquisition of vast areas of private lands in connection with a capital or industrial project in town always gives rise to speculative dealings in lands in the town. When such speculative dealings occur it is not unreasonable and improper to compute the market-value of the land with reference to a date proximate to the date of acquisition so as to exclude speculative rise in determining the market value of the landOn the material on record it is impossible for us to hold that in this case there has been a discrimination in the matter of compensation between land acquired in Bhopal area and other areas in the State. The classification between land in Bhopal area and other parts of the State is with reason and reasonable, and is for the purpose of enabling the State to acquire land at a reasonable price in Bhopal for the construction of the Capital. In our view, the amendments are not hit by Article 14 of the Constitution."With respect, the High Court has not examined the question of the validity of the reason for fixing the relevant date as October 1, 1955. There is no material on the record to show that on October 1, 1955, it was known that Bhopal may be the Capital of the State or that there was speculation because of this fact12. We have in the judgment delivered in Nagpur Improvement Trust v. Vithal Rao, Civil Appeal No. 2139 of 1968, D/- 11-12-1972 = (reported in AIR 1973 SC 689 ) examined Art. 14 and its implications as far as land acquisition is concerned. In our view, in the light of that judgment, the petition must be allowed.
|
Niwas Vs. Delhi Administration | is hardly 8 months and 14 days. The only ground on which his case for premature release has been deferred by the Sentence Revising Board as stated in the counter-affidavit is that the report of the Probation Officer is awaited and had not been received by the Board till its meeting held on March 25, 1982. We find from the affidavit in rejoinder an averment made to the effect that the Probation Officers report was forwarded to the Superintendent of Jail for being kept before the Board meeting that was to be held on September 21, 1981. However, there is no clinching material before us to show that the report was actually received by the Sentence Revising Board. Since, however, this petitioner has undergone a total imprisonment of 19 years 3 months and 16 days inclusive of remissions, we feel that this is a fit case where the petitioner should be released on bail forthwith. It is accordingly directed that this petitioner be released forthwith on bail to the satisfaction of Chief Metropolitan Magistrate, Delhi. In case there is real hardship in furnishing sureties the Chief Metropolitan Magistrate may release him on execution of personal bond. In case any adverse order is ultimately passed by the Sentence Revising Board, it will be open to the petitioner to challenge that order in appropriate proceedings and it will be open to the authorities concerned to apply for cancellation of bail.3. In Writ Petitions Nos. 930 of 1982 (Jaswant Singh) and 919 of 1982 (Raghu Nath) consideration of their cases for premature release has been deferred by the Sentence Revising Board as certain reports from the Police Department as well as from the Probation Officer had not been received by the Board. Since both these petitioners have undergone total imprisonment of over 17 years and 16 years inclusive of remissions respectively, it is high time that their release should have been considered by the Board without any delay. The respondents are, therefore, directed to consider and dispose of their cases for premature release within a period of one month from today. If, for some reason, they are not disposed of at the expiry of one month from today, both these petitioners shall then stand released on bail on the satisfaction of Chief Metropolitan Magistrate, Delhi. In case, ultimately, the Sentence Revising Board takes a decision adverse to these two petitioners, it will be open to the petitioner to challenge that decision in appropriate proceedings and it will also be open to the authorities concerned, if they are so advised, to apply for cancellation of bail.4. In Writ Petition No. 914 of 1982 (Shri Niwas) the petitioner has undergone a total imprisonment of 14 years 3 months and 28 days inclusive of remissions and as such his case for premature release has become ripe for consideration. From the counter-affidavit filed on behalf of Delhi Administration the only thing that has been stated is that his case for premature release was deferred for being considered to the next meeting of the Board for want of requisite information without indicating what information was required by the Board. It is not disputed that the police report, Probation Officers report as well as the jail Superintendents report are favourable to the petitioner and that all these authorities have recommended his premature release and his conduct in jail has also been certified to be good. In these circumstances, we do not see any reason why consideration of his case for premature release should be deferred any longer. We, therefore, direct that the petitioner be released forthwith from the prison. If, at a subsequent stage, the Sentence Revising Board comes to a contrary conclusion, it may be open to the authorities concerned to move this Court for appropriate orders.5. In Writ Petition No. 920 of 1982 (Irshad Ali) the petitioner has undergone a total imprisonment of 14 years 4 months and 14 days inclusive of remissions and his case for premature release has become ripe for consideration. In the counter-affidavit filed on behalf of Delhi Administration what has been stated is that his case for premature release was referred for consideration to the next meeting of the Board as judgment in his case was not made available so as to ascertain the circumstances and the background of the offence committed by him. This would show that the Board has to ascertain and consider certain facts bearing on the question of his premature release. It is, therefore, necessary that some reasonable time will have to be given to the Sentence Revising Board to consider his case. However, we find that his case for premature release has been recommended by the Probation Officer as well as by the Jail Superintendent and his conduct in jail has also been certified to be good and the police report is non-committal in the sense that the police have no comments to make. We, therefore, issue a mandamus directing the authorities concerned to consider and dispose of his case within three months from today. To enable the Sentence Revising Board to expedite the consideration of his case within three months we place on record that fact that the counsel for the petitioner has handed over to the counsel for the respondent true copies of the judgments of the trial court as well as the High Court which the counsel for the respondent states will be forwarded to the authorities concerned forthwith. If, for any reason, his case is not disposed of at the expiry of three months, then the petitioner shall be released on bail to the satisfaction of Chief Metropolitan Magistrate, Delhi. In case of real hardship in furnishing sureties the Chief Metropolitan Magistrate may release him on execution of personal bond. If, however, ultimately the decision of the authorities is adverse to the petitioner, it will be open to the petitioner to challenge that order in appropriate proceedings and it will also be open to the authorities concerned to apply for cancellation of bail. | 0[ds]We find from the affidavit in rejoinder an averment made to the effect that the Probation Officers report was forwarded to the Superintendent of Jail for being kept before the Board meeting that was to be held on September 21, 1981. However, there is no clinching material before us to show that the report was actually received by the Sentence Revising Board. Since, however, this petitioner has undergone a total imprisonment of 19 years 3 months and 16 days inclusive of remissions, we feel that this is a fit case where the petitioner should be released on bail forthwith. It is accordingly directed that this petitioner be released forthwith on bail to the satisfaction of Chief Metropolitan Magistrate, Delhi. In case there is real hardship in furnishing sureties the Chief Metropolitan Magistrate may release him on execution of personal bond. In case any adverse order is ultimately passed by the Sentence Revising Board, it will be open to the petitioner to challenge that order in appropriate proceedings and it will be open to the authorities concerned to apply for cancellation ofthese circumstances, we do not see any reason why consideration of his case for premature release should be deferred any longer. We, therefore, direct that the petitioner be released forthwith from the prison. If, at a subsequent stage, the Sentence Revising Board comes to a contrary conclusion, it may be open to the authorities concerned to move this Court for appropriatewe find that his case for premature release has been recommended by the Probation Officer as well as by the Jail Superintendent and his conduct in jail has also been certified to be good and the police report isin the sense that the police have no comments to make. We, therefore, issue a mandamus directing the authorities concerned to consider and dispose of his case within three months from today. To enable the Sentence Revising Board to expedite the consideration of his case within three months we place on record that fact that the counsel for the petitioner has handed over to the counsel for the respondent true copies of the judgments of the trial court as well as the High Court which the counsel for the respondent states will be forwarded to the authorities concerned forthwith. If, for any reason, his case is not disposed of at the expiry of three months, then the petitioner shall be released on bail to the satisfaction of Chief Metropolitan Magistrate, Delhi. In case of real hardship in furnishing sureties the Chief Metropolitan Magistrate may release him on execution of personal bond. If, however, ultimately the decision of the authorities is adverse to the petitioner, it will be open to the petitioner to challenge that order in appropriate proceedings and it will also be open to the authorities concerned to apply for cancellation of bail. | 0 | 1,596 | 511 | ### 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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is hardly 8 months and 14 days. The only ground on which his case for premature release has been deferred by the Sentence Revising Board as stated in the counter-affidavit is that the report of the Probation Officer is awaited and had not been received by the Board till its meeting held on March 25, 1982. We find from the affidavit in rejoinder an averment made to the effect that the Probation Officers report was forwarded to the Superintendent of Jail for being kept before the Board meeting that was to be held on September 21, 1981. However, there is no clinching material before us to show that the report was actually received by the Sentence Revising Board. Since, however, this petitioner has undergone a total imprisonment of 19 years 3 months and 16 days inclusive of remissions, we feel that this is a fit case where the petitioner should be released on bail forthwith. It is accordingly directed that this petitioner be released forthwith on bail to the satisfaction of Chief Metropolitan Magistrate, Delhi. In case there is real hardship in furnishing sureties the Chief Metropolitan Magistrate may release him on execution of personal bond. In case any adverse order is ultimately passed by the Sentence Revising Board, it will be open to the petitioner to challenge that order in appropriate proceedings and it will be open to the authorities concerned to apply for cancellation of bail.3. In Writ Petitions Nos. 930 of 1982 (Jaswant Singh) and 919 of 1982 (Raghu Nath) consideration of their cases for premature release has been deferred by the Sentence Revising Board as certain reports from the Police Department as well as from the Probation Officer had not been received by the Board. Since both these petitioners have undergone total imprisonment of over 17 years and 16 years inclusive of remissions respectively, it is high time that their release should have been considered by the Board without any delay. The respondents are, therefore, directed to consider and dispose of their cases for premature release within a period of one month from today. If, for some reason, they are not disposed of at the expiry of one month from today, both these petitioners shall then stand released on bail on the satisfaction of Chief Metropolitan Magistrate, Delhi. In case, ultimately, the Sentence Revising Board takes a decision adverse to these two petitioners, it will be open to the petitioner to challenge that decision in appropriate proceedings and it will also be open to the authorities concerned, if they are so advised, to apply for cancellation of bail.4. In Writ Petition No. 914 of 1982 (Shri Niwas) the petitioner has undergone a total imprisonment of 14 years 3 months and 28 days inclusive of remissions and as such his case for premature release has become ripe for consideration. From the counter-affidavit filed on behalf of Delhi Administration the only thing that has been stated is that his case for premature release was deferred for being considered to the next meeting of the Board for want of requisite information without indicating what information was required by the Board. It is not disputed that the police report, Probation Officers report as well as the jail Superintendents report are favourable to the petitioner and that all these authorities have recommended his premature release and his conduct in jail has also been certified to be good. In these circumstances, we do not see any reason why consideration of his case for premature release should be deferred any longer. We, therefore, direct that the petitioner be released forthwith from the prison. If, at a subsequent stage, the Sentence Revising Board comes to a contrary conclusion, it may be open to the authorities concerned to move this Court for appropriate orders.5. In Writ Petition No. 920 of 1982 (Irshad Ali) the petitioner has undergone a total imprisonment of 14 years 4 months and 14 days inclusive of remissions and his case for premature release has become ripe for consideration. In the counter-affidavit filed on behalf of Delhi Administration what has been stated is that his case for premature release was referred for consideration to the next meeting of the Board as judgment in his case was not made available so as to ascertain the circumstances and the background of the offence committed by him. This would show that the Board has to ascertain and consider certain facts bearing on the question of his premature release. It is, therefore, necessary that some reasonable time will have to be given to the Sentence Revising Board to consider his case. However, we find that his case for premature release has been recommended by the Probation Officer as well as by the Jail Superintendent and his conduct in jail has also been certified to be good and the police report is non-committal in the sense that the police have no comments to make. We, therefore, issue a mandamus directing the authorities concerned to consider and dispose of his case within three months from today. To enable the Sentence Revising Board to expedite the consideration of his case within three months we place on record that fact that the counsel for the petitioner has handed over to the counsel for the respondent true copies of the judgments of the trial court as well as the High Court which the counsel for the respondent states will be forwarded to the authorities concerned forthwith. If, for any reason, his case is not disposed of at the expiry of three months, then the petitioner shall be released on bail to the satisfaction of Chief Metropolitan Magistrate, Delhi. In case of real hardship in furnishing sureties the Chief Metropolitan Magistrate may release him on execution of personal bond. If, however, ultimately the decision of the authorities is adverse to the petitioner, it will be open to the petitioner to challenge that order in appropriate proceedings and it will also be open to the authorities concerned to apply for cancellation of bail.
### Response:
0
### Explanation:
We find from the affidavit in rejoinder an averment made to the effect that the Probation Officers report was forwarded to the Superintendent of Jail for being kept before the Board meeting that was to be held on September 21, 1981. However, there is no clinching material before us to show that the report was actually received by the Sentence Revising Board. Since, however, this petitioner has undergone a total imprisonment of 19 years 3 months and 16 days inclusive of remissions, we feel that this is a fit case where the petitioner should be released on bail forthwith. It is accordingly directed that this petitioner be released forthwith on bail to the satisfaction of Chief Metropolitan Magistrate, Delhi. In case there is real hardship in furnishing sureties the Chief Metropolitan Magistrate may release him on execution of personal bond. In case any adverse order is ultimately passed by the Sentence Revising Board, it will be open to the petitioner to challenge that order in appropriate proceedings and it will be open to the authorities concerned to apply for cancellation ofthese circumstances, we do not see any reason why consideration of his case for premature release should be deferred any longer. We, therefore, direct that the petitioner be released forthwith from the prison. If, at a subsequent stage, the Sentence Revising Board comes to a contrary conclusion, it may be open to the authorities concerned to move this Court for appropriatewe find that his case for premature release has been recommended by the Probation Officer as well as by the Jail Superintendent and his conduct in jail has also been certified to be good and the police report isin the sense that the police have no comments to make. We, therefore, issue a mandamus directing the authorities concerned to consider and dispose of his case within three months from today. To enable the Sentence Revising Board to expedite the consideration of his case within three months we place on record that fact that the counsel for the petitioner has handed over to the counsel for the respondent true copies of the judgments of the trial court as well as the High Court which the counsel for the respondent states will be forwarded to the authorities concerned forthwith. If, for any reason, his case is not disposed of at the expiry of three months, then the petitioner shall be released on bail to the satisfaction of Chief Metropolitan Magistrate, Delhi. In case of real hardship in furnishing sureties the Chief Metropolitan Magistrate may release him on execution of personal bond. If, however, ultimately the decision of the authorities is adverse to the petitioner, it will be open to the petitioner to challenge that order in appropriate proceedings and it will also be open to the authorities concerned to apply for cancellation of bail.
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Joginder Singh And Others Vs. The Deputy Custodian General Of Evacuee Property | cancel allotment of rural evacuee property on a quasi permanent basis. The result is that an allotment of such land can be cancelled only in the circumstances specified in that sub-rule. Therefore, subsequent to July 22, 1952 the Custodian of Evacuee Property would have the power to cancel an allotment only upon a ground which falls within the exceptions enumerated in sub-r. 6. Making of restitution is not within the exceptions and, therefore, it will have to be said that the inherent power of the Custodian to cancel an allotment for making restitution has been abrogated by the amended sub-rule. 8. The other argument of the Division Bench is to the effect that the powers of the Custodian-General under S. 27 are untouched by sub-r. 6. of R. 14 and that despite the making of this rule the Custodian-General was not prevented from cancelling an allotment made after July 22, 1952. Now S. 27 of the Act provides that he Custodian General may call for the record of any proceeding in which a District Judge or a Custodians has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit. The District Judge or the Custodian can in any matter before him do only that which the Act or the rules made thereunder permit or require him to do. If he fails to do what he is required to do or if he does something which he is not permitted to do or if he commits an error in doing an act which he is permitted to do,the Custodian-General has the power to order that to be done which the law requires the Custodian or the District Judge to do or to quash that which has illegally been done or to rectify the error which the Custodian or the District Judge has committed. He has no power to do something which the Custodian or District Judge could not have done or was prohibited from doing. Clearly, therefore, the High Court was in error in holding that the limitations placed by the present sub-r. 6. of R. 14 did not affect the power of the Custodian-General. 9. The learned single Judge as well as the Division Bench have taken the view that where an allotment is made in favour of a displaced person subsequent to July 22, 1952 the provisions of sub-r. 6 of R. 14 did not preclude the Custodian from cancelling that allotment. This view is sought to he supported by Mr. Nanak Chand on behalf of respondents 4 to 9 on, what he says the language of sub-r. 6 of R. 14. He says that according to this sub-rule what the Custodian is precluded from doing is to cancel an allotment which had already been made, that is, made before the coming into force of the sub-rule except upon certain grounds and does not place any further restrictions. We do not find any justification for placing such a restricted interpretation upon the plain language of the sub-rule. Learned counsel then referred to the second proviso to the sub-rule and contended that it supported the interpretation which he was placing. The proviso reads thus :"Provided that where an allotment is entitled or varied under Cl. (ii) the allottee shall be entitled to retain such portion of the land to which he would have been entitled under the scheme of quasi-permanent allotment of land : Provided further that nothing in this sub-rule shall apply to any application for revision, made under S. 26 or S. 27 of the Act, within the prescribed time, against an order passed by a lower authority on or before 22nd July 1952." How this proviso supports the argument of the learned counsel is difficult to appreciate. The proviso was not originally there when sub-r. 6 was amended on July 22, 1952. It is possible that a doubt was entertained after the making of this sub-rule on the question whether the Custodian-Genera1 or the Custodian before whom a revision application had been made against an order passed before July 22,1952 could make an order cancelling the allotment. Apparently to remove the doubt such as may have existed this proviso had been added. 10. Then learned counsel contended that this sub-rule cannot take away the wide powers conferred upon the Custodian by S. 10 of the Act. No doubt S. 10 confers wide powers on the Custodian but the opening words of the section show that the powers conferred thereby are subject to the provisions of rules made under the Act and 56 (2) (i) enables the Central Government to make rules to provide for "circumstances in which leases and allotments may be cancelled or terminated or the terms of any lease, or agreement varied." We have, therefore, no doubt that the High Court was in error in holding that sub-r. 6 of R. 14 was not a bar to the exercise by the Custodian-General of the power to cancel an allotment after July 22, 1952. 11. Having failed on the point which alone finds a place in the statement of the cases of both the parties, Mr Nanak Chand raised a contention that the allotment in favour of the appellants was itself bad because the cancellation of the allotment in favour of the respondents 4 to 9 was in Contravention of R. 14 (6) and that, therefore, the appellants were not entitled to the relief from the High Court under Art. 226 of the Constitution and accordingly are not entitled to any relief in this Court. Since the respondents have not relied upon this ground in the statement of their case we are not prepared to consider it. There may be more than one answer to the point urged by the respondents and had they specifically raised it in their statement of case, the appellants would have been in a position to give an appropriate answer. | 1[ds]7. The view taken by the Division Bench to the effect that R. 14 (6) did not stand in the way of the Custodian-General or the Custodian from restoring the land to the respondents the allotment with respect to which was wrongly cancelled by the Custodian cannot be sustained. No doubt it is one of the highest duties of all courts to take care that the act of the court does not do injury to suitors; but the Court must have power to rectify the wrong. Such power may either inhere in the Court or may be expressly conferred by statute. The law does not confer any express power on the Custodian to make restitution. But we will assume that he had inherent power to do so. Just as power can be conferred expressly by statute it can also be taken away or restricted and where it is taken away or restricted then, whether the power was statutory in its origin or was inherent in the Court, it will be either wholly unexercisable or exercisable only subject to the conditions laid down in the statute, as the case may be. Here we have the notification, dated July 22, 1952 which substituted the present sub-r. 6 of R. 14 for the original sub-r. 6. The amended sub-rule has placed a limitation on the powers of the Custodian to cancel allotment of rural evacuee property on a quasi permanent basis. The result is that an allotment of such land can be cancelled only in the circumstances specified in that sub-rule. Therefore, subsequent to July 22, 1952 the Custodian of Evacuee Property would have the power to cancel an allotment only upon a ground which falls within the exceptions enumerated in sub-r. 6. Making of restitution is not within the exceptions and, therefore, it will have to be said that the inherent power of the Custodian to cancel an allotment for making restitution has been abrogated by the amended sub-rule8. The other argument of the Division Bench is to the effect that the powers of the Custodian-General under S. 27 are untouched by sub-r. 6. of R. 14 and that despite the making of this rule the Custodian-General was not prevented from cancelling an allotment made after July 22, 1952. Now S. 27 of the Act provides that he Custodian General may call for the record of any proceeding in which a District Judge or a Custodians has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit. The District Judge or the Custodian can in any matter before him do only that which the Act or the rules made thereunder permit or require him to do. If he fails to do what he is required to do or if he does something which he is not permitted to do or if he commits an error in doing an act which he is permitted to do,the Custodian-General has the power to order that to be done which the law requires the Custodian or the District Judge to do or to quash that which has illegally been done or to rectify the error which the Custodian or the District Judge has committed. He has no power to do something which the Custodian or District Judge could not have done or was prohibited from doing. Clearly, therefore, the High Court was in error in holding that the limitations placed by the present sub-r. 6. of R. 14 did not affect the power of the Custodian-General. We do not find any justification for placing such a restricted interpretation upon the plain language of the sub-ruleHow this proviso supports the argument of the learned counsel is difficult to appreciate. The proviso was not originally there when sub-r. 6 was amended on July 22, 1952. It is possible that a doubt was entertained after the making of this sub-rule on the question whether the Custodian-Genera1 or the Custodian before whom a revision application had been made against an order passed before July 22,1952 could make an order cancelling the allotment. Apparently to remove the doubt such as may have existed this proviso had been addedNo doubt S. 10 confers wide powers on the Custodian but the opening words of the section show that the powers conferred thereby are subject to the provisions of rules made under the Act and 56 (2) (i) enables the Central Government to make rules to provide for "circumstances in which leases and allotments may be cancelled or terminated or the terms of any lease, or agreement varied." We have, therefore, no doubt that the High Court was in error in holding that sub-r. 6 of R. 14 was not a bar to the exercise by the Custodian-General of the power to cancel an allotment after July 22, 195211. Having failed on the point which alone finds a place in the statement of the cases of both the parties, Mr Nanak Chand raised a contention that the allotment in favour of the appellants was itself bad because the cancellation of the allotment in favour of the respondents 4 to 9 was in Contravention of R. 14 (6) and that, therefore, the appellants were not entitled to the relief from the High Court under Art. 226 of the Constitution and accordingly are not entitled to any relief in this Court. Since the respondents have not relied upon this ground in the statement of their case we are not prepared to consider it. There may be more than one answer to the point urged by the respondents and had they specifically raised it in their statement of case, the appellants would have been in a position to give an appropriate answer. The learned single Judge as well as the Division Bench have taken the view that where an allotment is made in favour of a displaced person subsequent to July 22, 1952 the provisions of. 6 of R. 14 did not preclude the Custodian from cancelling that allotment. This view is sought to he supported by Mr. Nanak Chand on behalf of respondents 4 to 9 on, what he says the language of. 6 of R. 14. He says that according to thise what the Custodian is precluded from doing is to cancel an allotment which had already been made, that is, made before the coming into force of thee except upon certain grounds and does not place any further | 1 | 2,471 | 1,159 | ### 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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cancel allotment of rural evacuee property on a quasi permanent basis. The result is that an allotment of such land can be cancelled only in the circumstances specified in that sub-rule. Therefore, subsequent to July 22, 1952 the Custodian of Evacuee Property would have the power to cancel an allotment only upon a ground which falls within the exceptions enumerated in sub-r. 6. Making of restitution is not within the exceptions and, therefore, it will have to be said that the inherent power of the Custodian to cancel an allotment for making restitution has been abrogated by the amended sub-rule. 8. The other argument of the Division Bench is to the effect that the powers of the Custodian-General under S. 27 are untouched by sub-r. 6. of R. 14 and that despite the making of this rule the Custodian-General was not prevented from cancelling an allotment made after July 22, 1952. Now S. 27 of the Act provides that he Custodian General may call for the record of any proceeding in which a District Judge or a Custodians has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit. The District Judge or the Custodian can in any matter before him do only that which the Act or the rules made thereunder permit or require him to do. If he fails to do what he is required to do or if he does something which he is not permitted to do or if he commits an error in doing an act which he is permitted to do,the Custodian-General has the power to order that to be done which the law requires the Custodian or the District Judge to do or to quash that which has illegally been done or to rectify the error which the Custodian or the District Judge has committed. He has no power to do something which the Custodian or District Judge could not have done or was prohibited from doing. Clearly, therefore, the High Court was in error in holding that the limitations placed by the present sub-r. 6. of R. 14 did not affect the power of the Custodian-General. 9. The learned single Judge as well as the Division Bench have taken the view that where an allotment is made in favour of a displaced person subsequent to July 22, 1952 the provisions of sub-r. 6 of R. 14 did not preclude the Custodian from cancelling that allotment. This view is sought to he supported by Mr. Nanak Chand on behalf of respondents 4 to 9 on, what he says the language of sub-r. 6 of R. 14. He says that according to this sub-rule what the Custodian is precluded from doing is to cancel an allotment which had already been made, that is, made before the coming into force of the sub-rule except upon certain grounds and does not place any further restrictions. We do not find any justification for placing such a restricted interpretation upon the plain language of the sub-rule. Learned counsel then referred to the second proviso to the sub-rule and contended that it supported the interpretation which he was placing. The proviso reads thus :"Provided that where an allotment is entitled or varied under Cl. (ii) the allottee shall be entitled to retain such portion of the land to which he would have been entitled under the scheme of quasi-permanent allotment of land : Provided further that nothing in this sub-rule shall apply to any application for revision, made under S. 26 or S. 27 of the Act, within the prescribed time, against an order passed by a lower authority on or before 22nd July 1952." How this proviso supports the argument of the learned counsel is difficult to appreciate. The proviso was not originally there when sub-r. 6 was amended on July 22, 1952. It is possible that a doubt was entertained after the making of this sub-rule on the question whether the Custodian-Genera1 or the Custodian before whom a revision application had been made against an order passed before July 22,1952 could make an order cancelling the allotment. Apparently to remove the doubt such as may have existed this proviso had been added. 10. Then learned counsel contended that this sub-rule cannot take away the wide powers conferred upon the Custodian by S. 10 of the Act. No doubt S. 10 confers wide powers on the Custodian but the opening words of the section show that the powers conferred thereby are subject to the provisions of rules made under the Act and 56 (2) (i) enables the Central Government to make rules to provide for "circumstances in which leases and allotments may be cancelled or terminated or the terms of any lease, or agreement varied." We have, therefore, no doubt that the High Court was in error in holding that sub-r. 6 of R. 14 was not a bar to the exercise by the Custodian-General of the power to cancel an allotment after July 22, 1952. 11. Having failed on the point which alone finds a place in the statement of the cases of both the parties, Mr Nanak Chand raised a contention that the allotment in favour of the appellants was itself bad because the cancellation of the allotment in favour of the respondents 4 to 9 was in Contravention of R. 14 (6) and that, therefore, the appellants were not entitled to the relief from the High Court under Art. 226 of the Constitution and accordingly are not entitled to any relief in this Court. Since the respondents have not relied upon this ground in the statement of their case we are not prepared to consider it. There may be more than one answer to the point urged by the respondents and had they specifically raised it in their statement of case, the appellants would have been in a position to give an appropriate answer.
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wrong. Such power may either inhere in the Court or may be expressly conferred by statute. The law does not confer any express power on the Custodian to make restitution. But we will assume that he had inherent power to do so. Just as power can be conferred expressly by statute it can also be taken away or restricted and where it is taken away or restricted then, whether the power was statutory in its origin or was inherent in the Court, it will be either wholly unexercisable or exercisable only subject to the conditions laid down in the statute, as the case may be. Here we have the notification, dated July 22, 1952 which substituted the present sub-r. 6 of R. 14 for the original sub-r. 6. The amended sub-rule has placed a limitation on the powers of the Custodian to cancel allotment of rural evacuee property on a quasi permanent basis. The result is that an allotment of such land can be cancelled only in the circumstances specified in that sub-rule. Therefore, subsequent to July 22, 1952 the Custodian of Evacuee Property would have the power to cancel an allotment only upon a ground which falls within the exceptions enumerated in sub-r. 6. Making of restitution is not within the exceptions and, therefore, it will have to be said that the inherent power of the Custodian to cancel an allotment for making restitution has been abrogated by the amended sub-rule8. The other argument of the Division Bench is to the effect that the powers of the Custodian-General under S. 27 are untouched by sub-r. 6. of R. 14 and that despite the making of this rule the Custodian-General was not prevented from cancelling an allotment made after July 22, 1952. Now S. 27 of the Act provides that he Custodian General may call for the record of any proceeding in which a District Judge or a Custodians has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit. The District Judge or the Custodian can in any matter before him do only that which the Act or the rules made thereunder permit or require him to do. If he fails to do what he is required to do or if he does something which he is not permitted to do or if he commits an error in doing an act which he is permitted to do,the Custodian-General has the power to order that to be done which the law requires the Custodian or the District Judge to do or to quash that which has illegally been done or to rectify the error which the Custodian or the District Judge has committed. He has no power to do something which the Custodian or District Judge could not have done or was prohibited from doing. Clearly, therefore, the High Court was in error in holding that the limitations placed by the present sub-r. 6. of R. 14 did not affect the power of the Custodian-General. We do not find any justification for placing such a restricted interpretation upon the plain language of the sub-ruleHow this proviso supports the argument of the learned counsel is difficult to appreciate. The proviso was not originally there when sub-r. 6 was amended on July 22, 1952. It is possible that a doubt was entertained after the making of this sub-rule on the question whether the Custodian-Genera1 or the Custodian before whom a revision application had been made against an order passed before July 22,1952 could make an order cancelling the allotment. Apparently to remove the doubt such as may have existed this proviso had been addedNo doubt S. 10 confers wide powers on the Custodian but the opening words of the section show that the powers conferred thereby are subject to the provisions of rules made under the Act and 56 (2) (i) enables the Central Government to make rules to provide for "circumstances in which leases and allotments may be cancelled or terminated or the terms of any lease, or agreement varied." We have, therefore, no doubt that the High Court was in error in holding that sub-r. 6 of R. 14 was not a bar to the exercise by the Custodian-General of the power to cancel an allotment after July 22, 195211. Having failed on the point which alone finds a place in the statement of the cases of both the parties, Mr Nanak Chand raised a contention that the allotment in favour of the appellants was itself bad because the cancellation of the allotment in favour of the respondents 4 to 9 was in Contravention of R. 14 (6) and that, therefore, the appellants were not entitled to the relief from the High Court under Art. 226 of the Constitution and accordingly are not entitled to any relief in this Court. Since the respondents have not relied upon this ground in the statement of their case we are not prepared to consider it. There may be more than one answer to the point urged by the respondents and had they specifically raised it in their statement of case, the appellants would have been in a position to give an appropriate answer. The learned single Judge as well as the Division Bench have taken the view that where an allotment is made in favour of a displaced person subsequent to July 22, 1952 the provisions of. 6 of R. 14 did not preclude the Custodian from cancelling that allotment. This view is sought to he supported by Mr. Nanak Chand on behalf of respondents 4 to 9 on, what he says the language of. 6 of R. 14. He says that according to thise what the Custodian is precluded from doing is to cancel an allotment which had already been made, that is, made before the coming into force of thee except upon certain grounds and does not place any further
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Charanji Lal Vs. State Of Punjab | or fastened, or due to various other causes including breakage of the container, or because decomposition has occurred, or it may be lost in transit. The word "damaged" in the collocation of the words "lost or damaged" occurring in sub-s. (2) of s. 11 and in the proviso to sub-s. (2C) of s. 13 must be construed in furtherance of the object and purpose of inserting these provisions. The whole purpose of depositing two parts of the sample with the Local (Health) Authority is that if one of the parts of the sample is lost or damaged for any reason whatever, the remaining part may still be available for analysis. There is a conflict of opinion between the High Courts and also within the same High Court as to the construction of the word "damaged" used in the proviso to sub-s. (2C) of s. 13 of the Act, some of which we have been able to trace out. The Punjab &Haryana High Court has itself taken two contrary views, one in the instant case, and the other in Darshan Lal v. Stat e of Punjab(1). The view of the Himachal Pradesh High Court in Ram Prakashs case, supra, and that of the Punjab &Haryana High Court in Darshan Lals case, supra, is that the meaning of the word "damaged" occurring in the proviso to sub-s. (2C) of s. 13 must be controlled by the context and it means "damaged due to the container not being properly sealed or fastened". The view to the contrary has been expressed by the Delhi High Court in State v. Joginder Lal Kapoor(2) and by the Punjab &Haryana High Court in the present case that the word "damaged" used in the proviso must be given a wider meaning as to include "damaged due to any cause, including decomposition". In Joginder Lal Kapoors case, supra the Delhi High Court observed that the loss or damage contemplated in the proviso to sub-s. (2C) of s. 13 of the Act must occur after the sample is despatched for analysis to the Central Food Laboratory, and added:"A sample can get damaged for a number of reasons including breakage, Leakage and decomposition. The possibility of a sample getting decomposed because of delay in transit cannot to ruled out. In my view the word "damage" used in sub-s. (2C) has to be given a wider meaning and it would include damage of any nature including decomposition but the damage must occur after the sample is despatched." 7. In Strouds Judicial Dictionary of Words &Phrases, 3rd edn., p. 710, para 9, it is stated: "You `damage a thing if you render it imperfect or inoperative". Decomposition would render a sample useless and of no value for analysis. While the Delhi High Court is right in holding in Joginder Lal Kapoors case, supra, that the word "damaged" used in sub-s. (2C ) has to be given a wider meaning, it is not possible for us to subscribe to the view that the loss or damage must occur after the sample is despatched for analysis to the Central Food Laboratory. We are inclined to think that the word "damaged" is wide enough to mean "damaged due to any cause whatever, including decomposition". To restrict the meaning of the phrase `lost or damaged would be to defeat the object for which the new s. 13 was inserted by Parliament by Act 34 of 1976. I t is not necessary that loss should take place only after the actual despatch of the part of the sample to the Central Food Laboratory has commenced. From the nature of things, the loss contemplated by the proviso to sub-s. (2C) of s. 13 must take place after the court has directed one part of the sample to be despatched to the Central Food Laboratory, but the course of such despatch is not required to be confined to the period of actual transit. Even if that part of the sample is lost after the court has directed it to be sent to the Director of the Central Food Laboratory and before the actual transit has commenced, that part of the sample would be "lost" within the meaning of the proviso to sub-s. (2C) of s. 13. So far as the damage to that part of the sample is concerned, if damage in the sense of decomposition were to be interpreted to mean decomposition taking place during the course of transit, it would frustrate the very object of Parliament in enacting the proviso to sub-s. (2C) of s. 13. Decomposition is not something which always takes place suddenly or immediately. It is a process which in some cases may be slow and in some cases quick. Decomposition cannot be noticed or ascertained by the Court when it inspects the part of the sample under sub-s. (2B) of s. 13 to ascertain whether the mark and seal or fastening are intact and the signature or thumb-impression, as the case may be, not tempered with, before despatching that part to the Central Food Laboratory. Even with the mark and seal intact, and the signature or thumb-impression, as the case may be, not tampered with, the sample might have already decomposed or decomposing might have already commenced. Whether a s ample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysis. Thus, while from the nature of things loss or external damage to the sample must take place after the Court directs under sub-s. (2B) of s. 13 despatch of the part of the sample, damage in the sense of decomposition of that part of the sample sent to the Central Food Laboratory may take place either before or after the Courts directs it s despatch to the Central Food Laboratory. In either event, that part of the sample would be "damaged" within the meaning of that expression in the proviso to sub-s. (2C) of s. 13 of the Act. | 1[ds]In Strouds Judicial Dictionary of Words &Phrases, 3rd edn., p. 710, para 9, it is stated: "You `damage a thing if you render it imperfect or inoperative". Decomposition would render a sample useless and of no value for analysis. While the Delhi High Court is right in holding in Joginder Lal Kapoors case, supra, that the word "damaged" used in sub-s. (2C ) has to be given a wider meaning, it is not possible for us to subscribe to the view that the loss or damage must occur after the sample is despatched for analysis to the Central Food Laboratory. We are inclined to think that the word "damaged" is wide enough to mean "damaged due to any cause whatever, including decomposition". To restrict the meaning of the phrase `lost or damaged would be to defeat the object for which the new s. 13 was inserted by Parliament by Act 34 of 1976. I t is not necessary that loss should take place only after the actual despatch of the part of the sample to the Central Food Laboratory has commenced. From the nature of things, the loss contemplated by the proviso to sub-s. (2C) of s. 13 must take place after the court has directed one part of the sample to be despatched to the Central Food Laboratory, but the course of such despatch is not required to be confined to the period of actual transit. Even if that part of the sample is lost after the court has directed it to be sent to the Director of the Central Food Laboratory and before the actual transit has commenced, that part of the sample would be "lost" within the meaning of the proviso to sub-s. (2C) of s. 13. So far as the damage to that part of the sample is concerned, if damage in the sense of decomposition were to be interpreted to mean decomposition taking place during the course of transit, it would frustrate the very object of Parliament in enacting the proviso to sub-s. (2C) of s. 13. Decomposition is not something which always takes place suddenly or immediately. It is a process which in some cases may be slow and in some cases quick. Decomposition cannot be noticed or ascertained by the Court when it inspects the part of the sample under sub-s. (2B) of s. 13 to ascertain whether the mark and seal or fastening are intact and the signature or thumb-impression, as the case may be, not tempered with, before despatching that part to the Central Food Laboratory. Even with the mark and seal intact, and the signature or thumb-impression, as the case may be, not tampered with, the sample might have already decomposed or decomposing might have already commenced. Whether a s ample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysis. Thus, while from the nature of things loss or external damage to the sample must take place after the Court directs under sub-s. (2B) of s. 13 despatch of the part of the sample, damage in the sense of decomposition of that part of the sample sent to the Central Food Laboratory may take place either before or after the Courts directs it s despatch to the Central Food Laboratory. In either event, that part of the sample would be "damaged" within the meaning of that expression in the proviso to sub-s. (2C) of s. 13 of the Act. | 1 | 4,869 | 657 | ### 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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or fastened, or due to various other causes including breakage of the container, or because decomposition has occurred, or it may be lost in transit. The word "damaged" in the collocation of the words "lost or damaged" occurring in sub-s. (2) of s. 11 and in the proviso to sub-s. (2C) of s. 13 must be construed in furtherance of the object and purpose of inserting these provisions. The whole purpose of depositing two parts of the sample with the Local (Health) Authority is that if one of the parts of the sample is lost or damaged for any reason whatever, the remaining part may still be available for analysis. There is a conflict of opinion between the High Courts and also within the same High Court as to the construction of the word "damaged" used in the proviso to sub-s. (2C) of s. 13 of the Act, some of which we have been able to trace out. The Punjab &Haryana High Court has itself taken two contrary views, one in the instant case, and the other in Darshan Lal v. Stat e of Punjab(1). The view of the Himachal Pradesh High Court in Ram Prakashs case, supra, and that of the Punjab &Haryana High Court in Darshan Lals case, supra, is that the meaning of the word "damaged" occurring in the proviso to sub-s. (2C) of s. 13 must be controlled by the context and it means "damaged due to the container not being properly sealed or fastened". The view to the contrary has been expressed by the Delhi High Court in State v. Joginder Lal Kapoor(2) and by the Punjab &Haryana High Court in the present case that the word "damaged" used in the proviso must be given a wider meaning as to include "damaged due to any cause, including decomposition". In Joginder Lal Kapoors case, supra the Delhi High Court observed that the loss or damage contemplated in the proviso to sub-s. (2C) of s. 13 of the Act must occur after the sample is despatched for analysis to the Central Food Laboratory, and added:"A sample can get damaged for a number of reasons including breakage, Leakage and decomposition. The possibility of a sample getting decomposed because of delay in transit cannot to ruled out. In my view the word "damage" used in sub-s. (2C) has to be given a wider meaning and it would include damage of any nature including decomposition but the damage must occur after the sample is despatched." 7. In Strouds Judicial Dictionary of Words &Phrases, 3rd edn., p. 710, para 9, it is stated: "You `damage a thing if you render it imperfect or inoperative". Decomposition would render a sample useless and of no value for analysis. While the Delhi High Court is right in holding in Joginder Lal Kapoors case, supra, that the word "damaged" used in sub-s. (2C ) has to be given a wider meaning, it is not possible for us to subscribe to the view that the loss or damage must occur after the sample is despatched for analysis to the Central Food Laboratory. We are inclined to think that the word "damaged" is wide enough to mean "damaged due to any cause whatever, including decomposition". To restrict the meaning of the phrase `lost or damaged would be to defeat the object for which the new s. 13 was inserted by Parliament by Act 34 of 1976. I t is not necessary that loss should take place only after the actual despatch of the part of the sample to the Central Food Laboratory has commenced. From the nature of things, the loss contemplated by the proviso to sub-s. (2C) of s. 13 must take place after the court has directed one part of the sample to be despatched to the Central Food Laboratory, but the course of such despatch is not required to be confined to the period of actual transit. Even if that part of the sample is lost after the court has directed it to be sent to the Director of the Central Food Laboratory and before the actual transit has commenced, that part of the sample would be "lost" within the meaning of the proviso to sub-s. (2C) of s. 13. So far as the damage to that part of the sample is concerned, if damage in the sense of decomposition were to be interpreted to mean decomposition taking place during the course of transit, it would frustrate the very object of Parliament in enacting the proviso to sub-s. (2C) of s. 13. Decomposition is not something which always takes place suddenly or immediately. It is a process which in some cases may be slow and in some cases quick. Decomposition cannot be noticed or ascertained by the Court when it inspects the part of the sample under sub-s. (2B) of s. 13 to ascertain whether the mark and seal or fastening are intact and the signature or thumb-impression, as the case may be, not tempered with, before despatching that part to the Central Food Laboratory. Even with the mark and seal intact, and the signature or thumb-impression, as the case may be, not tampered with, the sample might have already decomposed or decomposing might have already commenced. Whether a s ample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysis. Thus, while from the nature of things loss or external damage to the sample must take place after the Court directs under sub-s. (2B) of s. 13 despatch of the part of the sample, damage in the sense of decomposition of that part of the sample sent to the Central Food Laboratory may take place either before or after the Courts directs it s despatch to the Central Food Laboratory. In either event, that part of the sample would be "damaged" within the meaning of that expression in the proviso to sub-s. (2C) of s. 13 of the Act.
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In Strouds Judicial Dictionary of Words &Phrases, 3rd edn., p. 710, para 9, it is stated: "You `damage a thing if you render it imperfect or inoperative". Decomposition would render a sample useless and of no value for analysis. While the Delhi High Court is right in holding in Joginder Lal Kapoors case, supra, that the word "damaged" used in sub-s. (2C ) has to be given a wider meaning, it is not possible for us to subscribe to the view that the loss or damage must occur after the sample is despatched for analysis to the Central Food Laboratory. We are inclined to think that the word "damaged" is wide enough to mean "damaged due to any cause whatever, including decomposition". To restrict the meaning of the phrase `lost or damaged would be to defeat the object for which the new s. 13 was inserted by Parliament by Act 34 of 1976. I t is not necessary that loss should take place only after the actual despatch of the part of the sample to the Central Food Laboratory has commenced. From the nature of things, the loss contemplated by the proviso to sub-s. (2C) of s. 13 must take place after the court has directed one part of the sample to be despatched to the Central Food Laboratory, but the course of such despatch is not required to be confined to the period of actual transit. Even if that part of the sample is lost after the court has directed it to be sent to the Director of the Central Food Laboratory and before the actual transit has commenced, that part of the sample would be "lost" within the meaning of the proviso to sub-s. (2C) of s. 13. So far as the damage to that part of the sample is concerned, if damage in the sense of decomposition were to be interpreted to mean decomposition taking place during the course of transit, it would frustrate the very object of Parliament in enacting the proviso to sub-s. (2C) of s. 13. Decomposition is not something which always takes place suddenly or immediately. It is a process which in some cases may be slow and in some cases quick. Decomposition cannot be noticed or ascertained by the Court when it inspects the part of the sample under sub-s. (2B) of s. 13 to ascertain whether the mark and seal or fastening are intact and the signature or thumb-impression, as the case may be, not tempered with, before despatching that part to the Central Food Laboratory. Even with the mark and seal intact, and the signature or thumb-impression, as the case may be, not tampered with, the sample might have already decomposed or decomposing might have already commenced. Whether a s ample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysis. Thus, while from the nature of things loss or external damage to the sample must take place after the Court directs under sub-s. (2B) of s. 13 despatch of the part of the sample, damage in the sense of decomposition of that part of the sample sent to the Central Food Laboratory may take place either before or after the Courts directs it s despatch to the Central Food Laboratory. In either event, that part of the sample would be "damaged" within the meaning of that expression in the proviso to sub-s. (2C) of s. 13 of the Act.
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Tarkeshwar Sio Thakur Jiu Vs. Bar Dass Dey and Company and Others | paragraph of the Section, it is expressly stated that the price so paid in consideration of the transfer is called "the premium, and the money, share, service, or other thing to be so rendered, is called the rent." 21. The definition of immovable property given in Section 3, Para I of that Act is in the negative, and is not exhaustive. Therefore, the definition given in Section 3(26) of the General Clauses Act (X of 1897) will apply to the expression used in this Act, except as modified by the definition in the first clause of Section 3. According to the definition given in Section 3(26) of the General Clauses Act, "immovable property" shall include land, benefits to arise out Or land, and things attached to the earth, or permanently fastened to anything attached to the earth". In short, the expression immovable property comprehends all that would be real property according to English Law and possibly more. (See 1 I.A. 34). Thus, every interest in immovable property or a benefit arising out of land, will be immovable property for the purpose of Section 105, Transfer of Property Act.A right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral, is a right to enjoy immovable property within the meaning of Section 105; more so, when-as in the instant case-it is coupled with a right to be in its exclusive khas possession for a specified period. The right to enjoy immovable property spoken of in Section 105, means the right to enjoy the property in the manner in which that property can be enjoyed. If the subject-matter of the lease is mineral land or a sand-mine, as in the case before us, it can only be enjoyed and occupied by the lessee by working it, as indicated in Section 108, Transfer of Property Act, which regulates the rights and liabilities of lessors and lessees of immovable property. 22. In the view we take, we are supported by the observations of the Judicial Committee in Nageshwar Bux Roy v. Bengal Coal Company([1930] L. R. 58 I. A. 29.). Delivering the opinion of the Board, Lord Macmillan said:"In considering the character and effect of acts of possession in the case of a mineral field, it is necessary to bear in mind the nature of the subject and the possession of which it is susceptible. Owing to the inaccessibility of minerals in the earth, it is not possible to take actual physical possession at once of a whole mineral field: it can be occupied only by extracting the minerals and until the whole minerals are exhausted the physical occupation must necessarily be partial." 23. In H. V. Low &C o. Ltd. v. Jyoti Prasad Singh Deo ([1931] 1. L. R. 59 Cal. 699; L. R. 58 I. A. 392.), the law, as laid down in Gowans case (ibid), was strongly relied upon by the appellants, therein. Negativing this contention, the Judicial Committee pointed out that the rights and liabilities of lessor and lessee are defined in Section 108 of the Transfer of Property Act, and the appellant h ad not shown that the respondent had failed, or was not in a position to perform the duties incumbent on a lessor under Section 108 of the said Act.The discussion will not be complete without noticing, the decision of the Patna High Court in Commissioner of Income Tax, Bihar &Orissa v. Kumar Kanakhaya Narain Singh(1. L. R. (XX) Patna 13.), which is ill point. In that case. after an exhaustive survey of all the decisions on the subject, (including some of those which have been cited before us) a Full Bench consisting of three eminent Judges, held that coal-mining settlements whereby certain rights of entering upon the land of the settlor, sinking shafts etc. and winning and taking away the coal are granted in consideration of receiving a salami and annual sums computed on the amount of coal raised and the amount of coke manufactured, subject always to a minim um annual sum which was always payable irrespective of what coal was raised or coke manufactured, were not "a sale of coal", but could be regarded as leases within the meaning of Section 105 read with Section 108, Transfer of Property Act, or with in the legal acceptance of the term "lease" in this country. This decision of the High Court was affirmed by the Judicial Committee, and the appeal filed by Kumar Kanakhaya was dismissed. (See L.R. 70 I.A. 180). 24. The ratio of the Patna case applies with greater force to the facts of the case before us, because, herein, (a) the annual fixed payment had no relation, whatever, with the quantity of sand extracted and appropriate(i, and, what is more important, (b) the defendant was given a right to enter into and remain in khas possession of the mineral field for the stipulated period of 9 years. The transaction (Ex . I), though labelled as a licence, has all essential elements of a lease ever. under Section 105 of the Transfer for Property Act. In short, stripped of the form in which it is draped, the Agreement (Ex. I), in substance and in fact, is a lea se in the accepted legal sense of the term and not a licence as defined in Section 52 of the Indian Easements Act. If this be the correct construction of the document, and we think it is so it is doubtful whether Section 6(1) (i) could cover the appellants case and give him a right to retain the land in dispute eve if Section 28 was out of his way.In sum, we may reiterate that even on the assumption that the respondent was a licensee, the appellant will not be entitled to retain the holding because he was not directly working the mine immediately before the date of vesting, and as such, will not be entitled to retain, due to the overriding operation of Section 28. 25. | 0[ds]The argument is ingenious but untenable. The idol held the suit land comprised in the mine as an intermediary, only in the juristic sense, but, in fact he was exercising his rights in the suit land, through his human representative, the Shebait, Mohanta Srimat Dandi Swami. The Shebait could in that representative capacity, directly work the mine himself. But, instead of doing so, he, o n April 27, 1950 granted the right of carrying on mining operations in the land and taking away the mineral, on payment of an annual sum for a period of 9 years to the respondents. Thus, irrespective of whether this transaction or grant, dated April 27, 1950, was a lease or a license, the fact remains that immediately before the date of vesting, the mine in the suit land, was not being "directly worked " by the intermediary within the contemplation of Section 28It is well-settled that in ascertaining the real character of a document, regard must be had to the substance of the transaction and not merely the words or the form in which it is dressedThe definition of immovable property given in Section 3, Para I of that Act is in the negative, and is not exhaustive. Therefore, the definition given in Section 3(26) of the General Clauses Act (X of 1897) will apply to the expression used in this Act, except as modified by the definition in the first clause of Section 3. According to the definition given in Section 3(26) of the General Clauses Act, "immovable property" shall include land, benefits to arise out Or land, and things attached to the earth, or permanently fastened to anything attached to the earth". In short, the expression immovable property comprehends all that would be real property according to English Law and possibly more. (See 1 I.A. 34). Thus, every interest in immovable property or a benefit arising out of land, will be immovable property for the purpose of Section 105, Transfer of Property Act.A right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral, is a right to enjoy immovable property within the meaning of Section 105; more so, when-as in the instant case-it is coupled with a right to be in its exclusive khas possession for a specified period. The right to enjoy immovable property spoken of in Section 105, means the right to enjoy the property in the manner in which that property can be enjoyed. If the subject-matter of the lease is mineral land or a sand-mine, as in the case before us, it can only be enjoyed and occupied by the lessee by working it, as indicated in Section 108, Transfer of Property Act, which regulates the rights and liabilities of lessors and lessees of immovable propertyThe ratio of the Patna case applies with greater force to the facts of the case before us, because, herein, (a) the annual fixed payment had no relation, whatever, with the quantity of sand extracted and appropriate(i, and, what is more important, (b) the defendant was given a right to enter into and remain in khas possession of the mineral field for the stipulated period of 9 years. The transaction (Ex . I), though labelled as a licence, has all essential elements of a lease ever. under Section 105 of the Transfer for Property Act. In short, stripped of the form in which it is draped, the Agreement (Ex. I), in substance and in fact, is a lea se in the accepted legal sense of the term and not a licence as defined in Section 52 of the Indian Easements Act. If this be the correct construction of the document, and we think it is so it is doubtful whether Section 6(1) (i) could cover the appellants case and give him a right to retain the land in dispute eve if Section 28 was out of his way.In sum, we may reiterate that even on the assumption that the respondent was a licensee, the appellant will not be entitled to retain the holding because he was not directly working the mine immediately before the date of vesting, and as such, will not be entitled to retain, due to the overriding operation of Section 28In the view we take, we are supported by the observations of the Judicial Committee in Nageshwar Bux Roy v. Bengal Coal Company([1930] L. R. 58 I. A. 29.)It isd that in ascertaining the real character of a document, regard must be had to the substance of the transaction and not merely the words or the form in which it is. The Agreement (Ex. I), which is named as a licence, is to be construed in the light of this cardinal canon. | 0 | 5,495 | 921 | ### Instruction:
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paragraph of the Section, it is expressly stated that the price so paid in consideration of the transfer is called "the premium, and the money, share, service, or other thing to be so rendered, is called the rent." 21. The definition of immovable property given in Section 3, Para I of that Act is in the negative, and is not exhaustive. Therefore, the definition given in Section 3(26) of the General Clauses Act (X of 1897) will apply to the expression used in this Act, except as modified by the definition in the first clause of Section 3. According to the definition given in Section 3(26) of the General Clauses Act, "immovable property" shall include land, benefits to arise out Or land, and things attached to the earth, or permanently fastened to anything attached to the earth". In short, the expression immovable property comprehends all that would be real property according to English Law and possibly more. (See 1 I.A. 34). Thus, every interest in immovable property or a benefit arising out of land, will be immovable property for the purpose of Section 105, Transfer of Property Act.A right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral, is a right to enjoy immovable property within the meaning of Section 105; more so, when-as in the instant case-it is coupled with a right to be in its exclusive khas possession for a specified period. The right to enjoy immovable property spoken of in Section 105, means the right to enjoy the property in the manner in which that property can be enjoyed. If the subject-matter of the lease is mineral land or a sand-mine, as in the case before us, it can only be enjoyed and occupied by the lessee by working it, as indicated in Section 108, Transfer of Property Act, which regulates the rights and liabilities of lessors and lessees of immovable property. 22. In the view we take, we are supported by the observations of the Judicial Committee in Nageshwar Bux Roy v. Bengal Coal Company([1930] L. R. 58 I. A. 29.). Delivering the opinion of the Board, Lord Macmillan said:"In considering the character and effect of acts of possession in the case of a mineral field, it is necessary to bear in mind the nature of the subject and the possession of which it is susceptible. Owing to the inaccessibility of minerals in the earth, it is not possible to take actual physical possession at once of a whole mineral field: it can be occupied only by extracting the minerals and until the whole minerals are exhausted the physical occupation must necessarily be partial." 23. In H. V. Low &C o. Ltd. v. Jyoti Prasad Singh Deo ([1931] 1. L. R. 59 Cal. 699; L. R. 58 I. A. 392.), the law, as laid down in Gowans case (ibid), was strongly relied upon by the appellants, therein. Negativing this contention, the Judicial Committee pointed out that the rights and liabilities of lessor and lessee are defined in Section 108 of the Transfer of Property Act, and the appellant h ad not shown that the respondent had failed, or was not in a position to perform the duties incumbent on a lessor under Section 108 of the said Act.The discussion will not be complete without noticing, the decision of the Patna High Court in Commissioner of Income Tax, Bihar &Orissa v. Kumar Kanakhaya Narain Singh(1. L. R. (XX) Patna 13.), which is ill point. In that case. after an exhaustive survey of all the decisions on the subject, (including some of those which have been cited before us) a Full Bench consisting of three eminent Judges, held that coal-mining settlements whereby certain rights of entering upon the land of the settlor, sinking shafts etc. and winning and taking away the coal are granted in consideration of receiving a salami and annual sums computed on the amount of coal raised and the amount of coke manufactured, subject always to a minim um annual sum which was always payable irrespective of what coal was raised or coke manufactured, were not "a sale of coal", but could be regarded as leases within the meaning of Section 105 read with Section 108, Transfer of Property Act, or with in the legal acceptance of the term "lease" in this country. This decision of the High Court was affirmed by the Judicial Committee, and the appeal filed by Kumar Kanakhaya was dismissed. (See L.R. 70 I.A. 180). 24. The ratio of the Patna case applies with greater force to the facts of the case before us, because, herein, (a) the annual fixed payment had no relation, whatever, with the quantity of sand extracted and appropriate(i, and, what is more important, (b) the defendant was given a right to enter into and remain in khas possession of the mineral field for the stipulated period of 9 years. The transaction (Ex . I), though labelled as a licence, has all essential elements of a lease ever. under Section 105 of the Transfer for Property Act. In short, stripped of the form in which it is draped, the Agreement (Ex. I), in substance and in fact, is a lea se in the accepted legal sense of the term and not a licence as defined in Section 52 of the Indian Easements Act. If this be the correct construction of the document, and we think it is so it is doubtful whether Section 6(1) (i) could cover the appellants case and give him a right to retain the land in dispute eve if Section 28 was out of his way.In sum, we may reiterate that even on the assumption that the respondent was a licensee, the appellant will not be entitled to retain the holding because he was not directly working the mine immediately before the date of vesting, and as such, will not be entitled to retain, due to the overriding operation of Section 28. 25.
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The argument is ingenious but untenable. The idol held the suit land comprised in the mine as an intermediary, only in the juristic sense, but, in fact he was exercising his rights in the suit land, through his human representative, the Shebait, Mohanta Srimat Dandi Swami. The Shebait could in that representative capacity, directly work the mine himself. But, instead of doing so, he, o n April 27, 1950 granted the right of carrying on mining operations in the land and taking away the mineral, on payment of an annual sum for a period of 9 years to the respondents. Thus, irrespective of whether this transaction or grant, dated April 27, 1950, was a lease or a license, the fact remains that immediately before the date of vesting, the mine in the suit land, was not being "directly worked " by the intermediary within the contemplation of Section 28It is well-settled that in ascertaining the real character of a document, regard must be had to the substance of the transaction and not merely the words or the form in which it is dressedThe definition of immovable property given in Section 3, Para I of that Act is in the negative, and is not exhaustive. Therefore, the definition given in Section 3(26) of the General Clauses Act (X of 1897) will apply to the expression used in this Act, except as modified by the definition in the first clause of Section 3. According to the definition given in Section 3(26) of the General Clauses Act, "immovable property" shall include land, benefits to arise out Or land, and things attached to the earth, or permanently fastened to anything attached to the earth". In short, the expression immovable property comprehends all that would be real property according to English Law and possibly more. (See 1 I.A. 34). Thus, every interest in immovable property or a benefit arising out of land, will be immovable property for the purpose of Section 105, Transfer of Property Act.A right to carry on mining operations in land to extract a specified mineral and to remove and appropriate that mineral, is a right to enjoy immovable property within the meaning of Section 105; more so, when-as in the instant case-it is coupled with a right to be in its exclusive khas possession for a specified period. The right to enjoy immovable property spoken of in Section 105, means the right to enjoy the property in the manner in which that property can be enjoyed. If the subject-matter of the lease is mineral land or a sand-mine, as in the case before us, it can only be enjoyed and occupied by the lessee by working it, as indicated in Section 108, Transfer of Property Act, which regulates the rights and liabilities of lessors and lessees of immovable propertyThe ratio of the Patna case applies with greater force to the facts of the case before us, because, herein, (a) the annual fixed payment had no relation, whatever, with the quantity of sand extracted and appropriate(i, and, what is more important, (b) the defendant was given a right to enter into and remain in khas possession of the mineral field for the stipulated period of 9 years. The transaction (Ex . I), though labelled as a licence, has all essential elements of a lease ever. under Section 105 of the Transfer for Property Act. In short, stripped of the form in which it is draped, the Agreement (Ex. I), in substance and in fact, is a lea se in the accepted legal sense of the term and not a licence as defined in Section 52 of the Indian Easements Act. If this be the correct construction of the document, and we think it is so it is doubtful whether Section 6(1) (i) could cover the appellants case and give him a right to retain the land in dispute eve if Section 28 was out of his way.In sum, we may reiterate that even on the assumption that the respondent was a licensee, the appellant will not be entitled to retain the holding because he was not directly working the mine immediately before the date of vesting, and as such, will not be entitled to retain, due to the overriding operation of Section 28In the view we take, we are supported by the observations of the Judicial Committee in Nageshwar Bux Roy v. Bengal Coal Company([1930] L. R. 58 I. A. 29.)It isd that in ascertaining the real character of a document, regard must be had to the substance of the transaction and not merely the words or the form in which it is. The Agreement (Ex. I), which is named as a licence, is to be construed in the light of this cardinal canon.
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Sasan Power Limited Vs. North American Coal Corporation India Private Limited | not extend to the examination of the legality of the substantive contract. The language of the Section is plain and does not admit of any other construction. For the purpose of deciding whether the suit filed by the appellant herein is maintainable or impliedly barred by Section 45 of the 1996 Act, the Court is required to examine only the validity of the arbitration agreement within the parameters set out in Section 45, but not the substantive contract of which the arbitration agreement is a part. 48. This Court in Hindustan Petroleum Corpn. Ltd. v. Pinkcity Midway Petroleums, (2003) 6 SCC 503 , which was a case where there was a dealership agreement between the parties for supply of petroleum products to the respondents before this Court. On the ground that the dealer committed certain irregularities in business, supply of petroleum products was suspended by the appellant for a period of 30 days and along with the penalty of Rs. 15,000/-. The dealer filed a civil suit seeking a declaration that the action of the HPCL was illegal and arbitrary. In the said suit, HPCL filed an application praying that the dispute be referred to arbitration in view of the arbitration agreement between the parties. The said application was dismissed by the civil court holding that the dispute between the parties was not covered by the arbitration agreement which finding came to be confirmed by the High Court in a Revision. Dealing with the question, this Court held: "16. It is clear from the language of the section, as interpreted by the Constitution Bench judgment in Konkan Rly. that if there is any objection as to the applicability of the arbitration clause to the facts of the case, the same will have to be raised before the Arbitral Tribunal concerned. ... the courts below ought not to have proceeded to examine the applicability of the arbitration clause to the facts of the case..." If it is impermissible for a civil court to examine whether a dispute is really covered by the arbitration agreement, we see no reason to hold that a civil court exercising jurisdiction under Section 45 could examine the question whether the substantive agreement (of which the arbitration agreement is a part) is a valid agreement. No doubt that HPCL case was in the context of the bar contained in Section 8 of the 1996 Act. But the same principles of interpretation apply even for the interpretation of Section 45. 49. The stipulation regarding the governing law contained in Article XII Section 12.1 is an independent stipulation applicable to both the substantive agreement and the arbitration agreement. Either of the agreements can survive in an appropriate case without the other. For example, if in a given case, (of a across border contract) parties can agree upon for the governing law but do not have any agreement for settlement of dispute through arbitration, it would not make any legal difference to the governing law clause (if otherwise valid) and bind the parties. The judicial forum before which the dispute (if any arises) falls for adjudication is normally obliged to apply such chosen governing law - a principle of international law recognised by this Court (Reliance Industries Limited & Another v. Union of India, (2014) 7 SCC 603. "76.4 ...Therefore, the remedy against the award will have to be sought in England, where the juridical seat is located. However, we accept the submission of the appellant that since the substantive law governing the contract is Indian law, even the courts in England, in case the arbitrability is challenged, will have to decide the issue by applying Indian law viz. the principle of public policy, etc., as it prevails in Indian law.]). Similarly, it is possible in a given case, parties to a substantive contract in a cross border transaction agree for the resolution of the disputes, if any, to arise out of such contract through arbitration without specifying the governing law. In such case, it would be the duty of the arbitrator to ascertain the "proper law" applicable to the case in terms of the established principles of international law. It is also possible that in a given case parties agree that the governing law of the substantive contract be that of one country and the governing law of the arbitration agreement be of another country (In fact, the transaction which was the subject matter of dispute in Union of India v. Reliance Industries Limited & Others, (2015) 10 SCC 213 is one such. The substantive agreement is governed by the Indian law and the arbitration agreement by the law of England. See Para 2 of the said judgment.]). The principles of law in this regard are well settled. In all of the cases, the validity of either of the clauses/agreements does not depend upon the existence of the other." Therefore, the examination of the question of consistency of Article X Section 10.2 (part of the substantive contract) with Section 23 of the Contract Act are beyond the scope of the enquiry while adjudicating the validity of the arbitration agreement either under Section 45 or Section 8 (amended or original) of the 1996 Act. Therefore, the submissions of the appellant in this regard are required to be rejected. 50. We are left with only one question. Relief No.(iv) claimed in the suit of the appellant is for decree of declaration "against the defendant", respondent herein, that Article XII of AGREEMENT-I is "null and void, inoperative and unenforceable".Obviously Prayer No.(iv) is also based on the assumption that the dispute is exclusively between the appellant and the respondent, and therefore, there could not be an agreement between them for arbitration of their disputes arising out of the substantive agreement to be governed by the laws of the United Kingdom. In view of our conclusion that the dispute is not exclusively between two parties to the suit, such a relief could not be given in the suit, because the prayer itself is misconceived. | 0[ds]19. It is settled law that there can only be an assignment of rights arising under a contract but not the "burden of a contract".In the facts and circumstances of the case on hand as indicated by the record, the AGREEMENT-II appears to be falling under the 2nd of the above mentioned two classes of the contracts. There is no discharge of the original contractee i.e., the American companys obligations. There are mutual obligations (arising out of AGREEMENT-I) still to be enforced. The American company legally cannot claim to have been discharged from the obligations arising under AGREEMENT-I and infact has not been discharged. On the other hand, the appellant by an express covenant under AGREEMENT-II retained its rights to enforce obligations (arising under AGREEMENT-I) against the American company (See Footnote 3). AGREEMENT-II perhaps only creates an agency (The Indian Contract Act though does not define the expression agency defines agent and principal under Sec. 182.The pleading is wholly untenable in law for the followingThere cannot be any novation between the American company and the respondent because prior to the AGREEMENT-II, there was no agreement whatsoever between them.(ii) The respondent cannot be said to have stepped into the shoes of the American company because the obligations under AGREEMENT-I owed by the American company to the appellant were not discharged by theis on the basis of such a flawed understanding of law regarding the nature of the AGREEMENT-II the appellant raises the esoteric proposition whether two Indian Companies could have stipulated that their agreement be governed by the laws of the United Kingdom.24. Adjudication of the dispute raised by the respondent in the arbitration would necessarily involve examination of the rights and obligations of the American company under AGREEMENT-I and AGREEMENT-II. Therefore, it is a dispute between three parties (of which one is an American company) with a foreign element i.e. rights and obligations of the American company. Hence, the stipulation regarding the governing law cannot be said to be an agreement between only two Indian companies.In any case, whether an arbitration agreement is exclusively governed by the provisions of either Part-I or by Part-II of the 1996 Act or both (as discussed earlier), judicial authorities seized of an action in respect of which there exists an arbitration agreement are bound to refer the dispute between the parties to arbitration and are precluded under Sections 8 and 45 from adjudicating the dispute (of course) subject to the other conditions stipulated in the two sections.41. The instant appeal as already noticed arises out of an order in Interlocutory Application No.5 of 2015 filed by the respondent herein in the suit filed by the appellant herein. In the Interlocutory Application, the respondent made two prayers("i.. Refer the disputes between the Applicant and the Respondent to Arbitration (bearing ICC No.20432/TO as contemplated under the Agreement;ii. Reject the Plaint in C.S. (O.S.) 4A of 2014 as being barred by law and pass any other Orders that this Court may deem fit in the interest of) to reject the plaint in the suit filed by the appellant being barred by law; and (ii) to refer the dispute between the appellant and the respondent to arbitration as contemplated under the AGREEMENT.42. Insofar as the first of the abovementioned two prayers is concerned, the applicants/respondent case is to be found at para nos.16 and 17 of the application. In substance, the plea is that the suit is barred by virtue of Section 45 of the 1996 Act and, therefore, the plaint is liable to be rejected. Section 45 reads asPower of judicial authority to refer parties to arbitration.- Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of beingcan be seen from Section 45 that a judicial authority in this country when seized of an action in a matter in respect of which the parties have made an agreement referred to in Section 44 "shall refer the parties to arbitration" at the request of one of the parties to the agreement. The agreement referred to in Section 45 is one contemplated in Section 44.44. The appellants case as evidenced by the plaint in its suit is that parts of the AGREEMENT-I though created valid rights and obligations between the (original) parties thereto ceased to be valid subsequent to the assignment under AGREEMENT-II. Because (according to the appellants understanding) the parties to AGREEMENT-II are only two companies incorporated in India. They could not have agreed that the governing law of the agreement should be the law of the United Kingdom. According to the appellant, such a stipulation in the agreement would be contrary to the public policy and hit by Sections 23 of the Indian Contract Act, 1872. Therefore, the arbitration agreement initiated by the respondent cannot be proceeded with.45. It is settled law that an arbitration agreement is an independent or "self contained" agreement.In our opinion, the scope of enquiry (even) under the Section 45 is confined only to the question whether the arbitration agreement is "null and void, inoperative or incapable of being performed" but not the legality and validity of the substantive contract.47. The case of the appellant as disclosed from the plaint is that Article X, Section 10.2 is inconsistent with some provisions of the Indian Contract Act, 1872, and hit by Section 23 of the Indian Contract Act (as being contrary to public policy). It is a submission regarding the legality of the substantive contract. Even if the said submission is to be accepted, it does not invalidate the arbitration agreement because the arbitration agreement is independent and apart from the substantive contract. All that we hold is that the scope of enquiry under the Section 45 does not extend to the examination of the legality of the substantive contract. The language of the Section is plain and does not admit of any other construction. For the purpose of deciding whether the suit filed by the appellant herein is maintainable or impliedly barred by Section 45 of the 1996 Act, the Court is required to examine only the validity of the arbitration agreement within the parameters set out in Section 45, but not the substantive contract of which the arbitration agreement is a part.We are left with only one question. Relief No.(iv) claimed in the suit of the appellant is for decree of declaration "against the defendant", respondent herein, that Article XII of AGREEMENT-I is "null and void, inoperative and unenforceable".Obviously Prayer No.(iv) is also based on the assumption that the dispute is exclusively between the appellant and the respondent, and therefore, there could not be an agreement between them for arbitration of their disputes arising out of the substantive agreement to be governed by the laws of the United Kingdom. In view of our conclusion that the dispute is not exclusively between two parties to the suit, such a relief could not be given in the suit, because the prayer itself is | 0 | 11,004 | 1,363 | ### Instruction:
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not extend to the examination of the legality of the substantive contract. The language of the Section is plain and does not admit of any other construction. For the purpose of deciding whether the suit filed by the appellant herein is maintainable or impliedly barred by Section 45 of the 1996 Act, the Court is required to examine only the validity of the arbitration agreement within the parameters set out in Section 45, but not the substantive contract of which the arbitration agreement is a part. 48. This Court in Hindustan Petroleum Corpn. Ltd. v. Pinkcity Midway Petroleums, (2003) 6 SCC 503 , which was a case where there was a dealership agreement between the parties for supply of petroleum products to the respondents before this Court. On the ground that the dealer committed certain irregularities in business, supply of petroleum products was suspended by the appellant for a period of 30 days and along with the penalty of Rs. 15,000/-. The dealer filed a civil suit seeking a declaration that the action of the HPCL was illegal and arbitrary. In the said suit, HPCL filed an application praying that the dispute be referred to arbitration in view of the arbitration agreement between the parties. The said application was dismissed by the civil court holding that the dispute between the parties was not covered by the arbitration agreement which finding came to be confirmed by the High Court in a Revision. Dealing with the question, this Court held: "16. It is clear from the language of the section, as interpreted by the Constitution Bench judgment in Konkan Rly. that if there is any objection as to the applicability of the arbitration clause to the facts of the case, the same will have to be raised before the Arbitral Tribunal concerned. ... the courts below ought not to have proceeded to examine the applicability of the arbitration clause to the facts of the case..." If it is impermissible for a civil court to examine whether a dispute is really covered by the arbitration agreement, we see no reason to hold that a civil court exercising jurisdiction under Section 45 could examine the question whether the substantive agreement (of which the arbitration agreement is a part) is a valid agreement. No doubt that HPCL case was in the context of the bar contained in Section 8 of the 1996 Act. But the same principles of interpretation apply even for the interpretation of Section 45. 49. The stipulation regarding the governing law contained in Article XII Section 12.1 is an independent stipulation applicable to both the substantive agreement and the arbitration agreement. Either of the agreements can survive in an appropriate case without the other. For example, if in a given case, (of a across border contract) parties can agree upon for the governing law but do not have any agreement for settlement of dispute through arbitration, it would not make any legal difference to the governing law clause (if otherwise valid) and bind the parties. The judicial forum before which the dispute (if any arises) falls for adjudication is normally obliged to apply such chosen governing law - a principle of international law recognised by this Court (Reliance Industries Limited & Another v. Union of India, (2014) 7 SCC 603. "76.4 ...Therefore, the remedy against the award will have to be sought in England, where the juridical seat is located. However, we accept the submission of the appellant that since the substantive law governing the contract is Indian law, even the courts in England, in case the arbitrability is challenged, will have to decide the issue by applying Indian law viz. the principle of public policy, etc., as it prevails in Indian law.]). Similarly, it is possible in a given case, parties to a substantive contract in a cross border transaction agree for the resolution of the disputes, if any, to arise out of such contract through arbitration without specifying the governing law. In such case, it would be the duty of the arbitrator to ascertain the "proper law" applicable to the case in terms of the established principles of international law. It is also possible that in a given case parties agree that the governing law of the substantive contract be that of one country and the governing law of the arbitration agreement be of another country (In fact, the transaction which was the subject matter of dispute in Union of India v. Reliance Industries Limited & Others, (2015) 10 SCC 213 is one such. The substantive agreement is governed by the Indian law and the arbitration agreement by the law of England. See Para 2 of the said judgment.]). The principles of law in this regard are well settled. In all of the cases, the validity of either of the clauses/agreements does not depend upon the existence of the other." Therefore, the examination of the question of consistency of Article X Section 10.2 (part of the substantive contract) with Section 23 of the Contract Act are beyond the scope of the enquiry while adjudicating the validity of the arbitration agreement either under Section 45 or Section 8 (amended or original) of the 1996 Act. Therefore, the submissions of the appellant in this regard are required to be rejected. 50. We are left with only one question. Relief No.(iv) claimed in the suit of the appellant is for decree of declaration "against the defendant", respondent herein, that Article XII of AGREEMENT-I is "null and void, inoperative and unenforceable".Obviously Prayer No.(iv) is also based on the assumption that the dispute is exclusively between the appellant and the respondent, and therefore, there could not be an agreement between them for arbitration of their disputes arising out of the substantive agreement to be governed by the laws of the United Kingdom. In view of our conclusion that the dispute is not exclusively between two parties to the suit, such a relief could not be given in the suit, because the prayer itself is misconceived.
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by theis on the basis of such a flawed understanding of law regarding the nature of the AGREEMENT-II the appellant raises the esoteric proposition whether two Indian Companies could have stipulated that their agreement be governed by the laws of the United Kingdom.24. Adjudication of the dispute raised by the respondent in the arbitration would necessarily involve examination of the rights and obligations of the American company under AGREEMENT-I and AGREEMENT-II. Therefore, it is a dispute between three parties (of which one is an American company) with a foreign element i.e. rights and obligations of the American company. Hence, the stipulation regarding the governing law cannot be said to be an agreement between only two Indian companies.In any case, whether an arbitration agreement is exclusively governed by the provisions of either Part-I or by Part-II of the 1996 Act or both (as discussed earlier), judicial authorities seized of an action in respect of which there exists an arbitration agreement are bound to refer the dispute between the parties to arbitration and are precluded under Sections 8 and 45 from adjudicating the dispute (of course) subject to the other conditions stipulated in the two sections.41. The instant appeal as already noticed arises out of an order in Interlocutory Application No.5 of 2015 filed by the respondent herein in the suit filed by the appellant herein. In the Interlocutory Application, the respondent made two prayers("i.. Refer the disputes between the Applicant and the Respondent to Arbitration (bearing ICC No.20432/TO as contemplated under the Agreement;ii. Reject the Plaint in C.S. (O.S.) 4A of 2014 as being barred by law and pass any other Orders that this Court may deem fit in the interest of) to reject the plaint in the suit filed by the appellant being barred by law; and (ii) to refer the dispute between the appellant and the respondent to arbitration as contemplated under the AGREEMENT.42. Insofar as the first of the abovementioned two prayers is concerned, the applicants/respondent case is to be found at para nos.16 and 17 of the application. In substance, the plea is that the suit is barred by virtue of Section 45 of the 1996 Act and, therefore, the plaint is liable to be rejected. Section 45 reads asPower of judicial authority to refer parties to arbitration.- Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of beingcan be seen from Section 45 that a judicial authority in this country when seized of an action in a matter in respect of which the parties have made an agreement referred to in Section 44 "shall refer the parties to arbitration" at the request of one of the parties to the agreement. The agreement referred to in Section 45 is one contemplated in Section 44.44. The appellants case as evidenced by the plaint in its suit is that parts of the AGREEMENT-I though created valid rights and obligations between the (original) parties thereto ceased to be valid subsequent to the assignment under AGREEMENT-II. Because (according to the appellants understanding) the parties to AGREEMENT-II are only two companies incorporated in India. They could not have agreed that the governing law of the agreement should be the law of the United Kingdom. According to the appellant, such a stipulation in the agreement would be contrary to the public policy and hit by Sections 23 of the Indian Contract Act, 1872. Therefore, the arbitration agreement initiated by the respondent cannot be proceeded with.45. It is settled law that an arbitration agreement is an independent or "self contained" agreement.In our opinion, the scope of enquiry (even) under the Section 45 is confined only to the question whether the arbitration agreement is "null and void, inoperative or incapable of being performed" but not the legality and validity of the substantive contract.47. The case of the appellant as disclosed from the plaint is that Article X, Section 10.2 is inconsistent with some provisions of the Indian Contract Act, 1872, and hit by Section 23 of the Indian Contract Act (as being contrary to public policy). It is a submission regarding the legality of the substantive contract. Even if the said submission is to be accepted, it does not invalidate the arbitration agreement because the arbitration agreement is independent and apart from the substantive contract. All that we hold is that the scope of enquiry under the Section 45 does not extend to the examination of the legality of the substantive contract. The language of the Section is plain and does not admit of any other construction. For the purpose of deciding whether the suit filed by the appellant herein is maintainable or impliedly barred by Section 45 of the 1996 Act, the Court is required to examine only the validity of the arbitration agreement within the parameters set out in Section 45, but not the substantive contract of which the arbitration agreement is a part.We are left with only one question. Relief No.(iv) claimed in the suit of the appellant is for decree of declaration "against the defendant", respondent herein, that Article XII of AGREEMENT-I is "null and void, inoperative and unenforceable".Obviously Prayer No.(iv) is also based on the assumption that the dispute is exclusively between the appellant and the respondent, and therefore, there could not be an agreement between them for arbitration of their disputes arising out of the substantive agreement to be governed by the laws of the United Kingdom. In view of our conclusion that the dispute is not exclusively between two parties to the suit, such a relief could not be given in the suit, because the prayer itself is
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Tilak Ram & Others Vs. Nathu & Others | the section, this Court stated that an acknowledgment may be sufficient by reason of Explanation 1 even if it omits to specify the exact nature of the right. Nevertheless, the statement on which a plea of acknowledgment is based must relate to a subsisting liability. The words used in the acknowledgment must indicate the jural relationship between the parties and it must appear that such a statement is made with the intention of admitting that jural relationship. Such an intention, no doubt, can be inferred by implication from the nature of the admission and need not be in express words. It was then observed:"If the statement is fairly clear then the intention to admit the jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the Court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement."The Court also observed that stated generally the Courts leaned in favour of a liberal construction of such statements though that would not mean that where no admission was made one should be inferred or where a statement was made clearly without intending to admit the existence of jural relationship such as intention would be fastened on the maker of the statement by an involved or a far-fetched process of reasoning. Similarly, while dealing with an admission of a debt, Fry L. J. in Green v. Humphreys, (1884) 26 Ch D 474 at p. 481, observed that an acknowledgment would be an admission by the writer that there was a debt owing by him either to the receiver of the letter or to some other person on whose behalf the letter was received but that it was not enough that he referred to a debt as being due from somebody. In order to take the case out of the statute there must, upon a fair construction of the letter read by the light of the surrounding circumstances, be an admission that the writer owed the debt.10. The right of redemption no doubt is of the essence of and inherent in a transaction of mortgage. But the statement in question must relate to the subsisting liability or the right claimed. Where the statement is relied on as expressing jural relationship it must show that it was made with the intention of admitting such jural relationship subsisting at the time when it was made. It follows that where a statement setting out jural relationship is made clearly without intending to admit its existence an intention to admit cannot be imposed on its maker by an involved or a far-fetched process of reasoning.11. Do the statements relied on admit or acknowledge subsisting mortgages and the right to redeem or the liability of the maker thereof to be redeemed ? Exhibit E, dated April 8, 1902 is the mortgage deed executed by Parmeshwardas in favour of Badam for Rs. 200. The document refers only to one out of the said seven mortgages. Though it refers to the mortgage in favour of Dharamdas it does so for the purpose of describing the interest Parmeshwardas was mortgaging in favour of Badam and of his own right of redeeming the mortgage. The said mortgage thus is set out for showing the nature of the interest which he was mortgaging as security for the said debt of Rs. 200 rather than for admitting the mortgage of 1861 as a subsisting mortgage. The document thus cannot he said to be one made with the intention of admitting the jural relationship between him as the successor-in-title of Dharamdas and the successors-in-title of the said Teja. The second document Ex. X, dated August 16, 1902 was made between Parmeshwardas on the one hand and Hira Singh and others on the other and was a sale of his mortgage rights. The deed recites the mortgages executed by the said Teja in favour of Dharamdas, the fact of Parmeshwardas being in possession as Dharamdass successor-in-title, the deed of mortgage, dated April 8, 1902 (Ex. E) and the fact that he was by this deed selling his mortgage rights for Rs. 1,290. These statements were clearly made for the purpose of describing his own rights which he was selling under this deed. But there is nothing in this document to show that he referred to the said mortgages with the intention of admitting his jural relationship with his mortgagors and, therefore, of his subsisting liability as the mortgagee thereunder of being redeemed. The third document Ex. P. 15 is the plaint in Suit No. 31 of 1903. Here again the statement as to Parmeshwardas having sold his mortgage rights to the plaintiffs was made with a view to trace their own rights as against the defendants and not with any consciousness or intention to admit the jural relationship between them or to admit the fact of the said mortgages being subsisting at the time when the plaint was filed. The statement in the plaint was made not in relation to the said mortgages but with reference to their own rights under the said deed of sale of mortgage rights in their favour. The fourth document is the written statement in Suit No. 50 of 1903 where the right of the plaintiffs in that suit to redeem has been specifically denied. The statement, therefore, cannot be, availed of as an acknowledgment of a subsisting jural relationship or of a subsisting right and a corresponding liability of being redeemed.12. In the light of the tests laid down in Khan Bahadur Mazdas case, (1962) 1 SCR 140 : (AIR 1961 SC 1236 ) (Supra) none of these statements can be regarded as acknowledgment within the meaning of S. 19. The High Court, therefore, was right in refusing to treat these statements or any of them as acknowledgments and was equally right in its conclusion that the appellants suit was barred by limitation. | 0[ds]5. Before we proceed to consider these contentions we may mention that none of the statements relied on by the appellants expressly admitted the appellants right to redeem or the liability of the respondents and theirto be redeemed. What these statements did was only to mention without anything more the fact of jural relationship of mortgagor andis thus a clear divergence of opinion not only amongst the different High Courts but also sometimes in the same HighE, dated April 8, 1902 is the mortgage deed executed by Parmeshwardas in favour of Badam for Rs. 200. The document refers only to one out of the said seven mortgages. Though it refers to the mortgage in favour of Dharamdas it does so for the purpose of describing the interest Parmeshwardas was mortgaging in favour of Badam and of his own right of redeeming the mortgage. The said mortgage thus is set out for showing the nature of the interest which he was mortgaging as security for the said debt of Rs. 200 rather than for admitting the mortgage of 1861 as a subsisting mortgage. The document thus cannot he said to be one made with the intention of admitting the jural relationship between him as theof Dharamdas and theof the said Teja. The second document Ex. X, dated August 16, 1902 was made between Parmeshwardas on the one hand and Hira Singh and others on the other and was a sale of his mortgage rights. The deed recites the mortgages executed by the said Teja in favour of Dharamdas, the fact of Parmeshwardas being in possession as Dharamdassthe deed of mortgage, dated April 8, 1902 (Ex. E) and the fact that he was by this deed selling his mortgage rights for Rs. 1,290. These statements were clearly made for the purpose of describing his own rights which he was selling under this deed. But there is nothing in this document to show that he referred to the said mortgages with the intention of admitting his jural relationship with his mortgagors and, therefore, of his subsisting liability as the mortgagee thereunder of being redeemed. The third document Ex. P. 15 is the plaint in Suit No. 31 of 1903. Here again the statement as to Parmeshwardas having sold his mortgage rights to the plaintiffs was made with a view to trace their own rights as against the defendants and not with any consciousness or intention to admit the jural relationship between them or to admit the fact of the said mortgages being subsisting at the time when the plaint was filed. The statement in the plaint was made not in relation to the said mortgages but with reference to their own rights under the said deed of sale of mortgage rights in their favour. The fourth document is the written statement in Suit No. 50 of 1903 where the right of the plaintiffs in that suit to redeem has been specifically denied. The statement, therefore, cannot be, availed of as an acknowledgment of a subsisting jural relationship or of a subsisting right and a corresponding liability of being redeemed.12. In the light of the tests laid down in Khan Bahadur Mazdas case, (1962) 1 SCR 140 : (AIR 1961 SC 1236 ) (Supra) none of these statements can be regarded as acknowledgment within the meaning of S. 19. The High Court, therefore, was right in refusing to treat these statements or any of them as acknowledgments and was equally right in its conclusion that the appellants suit was barred by limitation. | 0 | 3,583 | 642 | ### 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 section, this Court stated that an acknowledgment may be sufficient by reason of Explanation 1 even if it omits to specify the exact nature of the right. Nevertheless, the statement on which a plea of acknowledgment is based must relate to a subsisting liability. The words used in the acknowledgment must indicate the jural relationship between the parties and it must appear that such a statement is made with the intention of admitting that jural relationship. Such an intention, no doubt, can be inferred by implication from the nature of the admission and need not be in express words. It was then observed:"If the statement is fairly clear then the intention to admit the jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the Court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement."The Court also observed that stated generally the Courts leaned in favour of a liberal construction of such statements though that would not mean that where no admission was made one should be inferred or where a statement was made clearly without intending to admit the existence of jural relationship such as intention would be fastened on the maker of the statement by an involved or a far-fetched process of reasoning. Similarly, while dealing with an admission of a debt, Fry L. J. in Green v. Humphreys, (1884) 26 Ch D 474 at p. 481, observed that an acknowledgment would be an admission by the writer that there was a debt owing by him either to the receiver of the letter or to some other person on whose behalf the letter was received but that it was not enough that he referred to a debt as being due from somebody. In order to take the case out of the statute there must, upon a fair construction of the letter read by the light of the surrounding circumstances, be an admission that the writer owed the debt.10. The right of redemption no doubt is of the essence of and inherent in a transaction of mortgage. But the statement in question must relate to the subsisting liability or the right claimed. Where the statement is relied on as expressing jural relationship it must show that it was made with the intention of admitting such jural relationship subsisting at the time when it was made. It follows that where a statement setting out jural relationship is made clearly without intending to admit its existence an intention to admit cannot be imposed on its maker by an involved or a far-fetched process of reasoning.11. Do the statements relied on admit or acknowledge subsisting mortgages and the right to redeem or the liability of the maker thereof to be redeemed ? Exhibit E, dated April 8, 1902 is the mortgage deed executed by Parmeshwardas in favour of Badam for Rs. 200. The document refers only to one out of the said seven mortgages. Though it refers to the mortgage in favour of Dharamdas it does so for the purpose of describing the interest Parmeshwardas was mortgaging in favour of Badam and of his own right of redeeming the mortgage. The said mortgage thus is set out for showing the nature of the interest which he was mortgaging as security for the said debt of Rs. 200 rather than for admitting the mortgage of 1861 as a subsisting mortgage. The document thus cannot he said to be one made with the intention of admitting the jural relationship between him as the successor-in-title of Dharamdas and the successors-in-title of the said Teja. The second document Ex. X, dated August 16, 1902 was made between Parmeshwardas on the one hand and Hira Singh and others on the other and was a sale of his mortgage rights. The deed recites the mortgages executed by the said Teja in favour of Dharamdas, the fact of Parmeshwardas being in possession as Dharamdass successor-in-title, the deed of mortgage, dated April 8, 1902 (Ex. E) and the fact that he was by this deed selling his mortgage rights for Rs. 1,290. These statements were clearly made for the purpose of describing his own rights which he was selling under this deed. But there is nothing in this document to show that he referred to the said mortgages with the intention of admitting his jural relationship with his mortgagors and, therefore, of his subsisting liability as the mortgagee thereunder of being redeemed. The third document Ex. P. 15 is the plaint in Suit No. 31 of 1903. Here again the statement as to Parmeshwardas having sold his mortgage rights to the plaintiffs was made with a view to trace their own rights as against the defendants and not with any consciousness or intention to admit the jural relationship between them or to admit the fact of the said mortgages being subsisting at the time when the plaint was filed. The statement in the plaint was made not in relation to the said mortgages but with reference to their own rights under the said deed of sale of mortgage rights in their favour. The fourth document is the written statement in Suit No. 50 of 1903 where the right of the plaintiffs in that suit to redeem has been specifically denied. The statement, therefore, cannot be, availed of as an acknowledgment of a subsisting jural relationship or of a subsisting right and a corresponding liability of being redeemed.12. In the light of the tests laid down in Khan Bahadur Mazdas case, (1962) 1 SCR 140 : (AIR 1961 SC 1236 ) (Supra) none of these statements can be regarded as acknowledgment within the meaning of S. 19. The High Court, therefore, was right in refusing to treat these statements or any of them as acknowledgments and was equally right in its conclusion that the appellants suit was barred by limitation.
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5. Before we proceed to consider these contentions we may mention that none of the statements relied on by the appellants expressly admitted the appellants right to redeem or the liability of the respondents and theirto be redeemed. What these statements did was only to mention without anything more the fact of jural relationship of mortgagor andis thus a clear divergence of opinion not only amongst the different High Courts but also sometimes in the same HighE, dated April 8, 1902 is the mortgage deed executed by Parmeshwardas in favour of Badam for Rs. 200. The document refers only to one out of the said seven mortgages. Though it refers to the mortgage in favour of Dharamdas it does so for the purpose of describing the interest Parmeshwardas was mortgaging in favour of Badam and of his own right of redeeming the mortgage. The said mortgage thus is set out for showing the nature of the interest which he was mortgaging as security for the said debt of Rs. 200 rather than for admitting the mortgage of 1861 as a subsisting mortgage. The document thus cannot he said to be one made with the intention of admitting the jural relationship between him as theof Dharamdas and theof the said Teja. The second document Ex. X, dated August 16, 1902 was made between Parmeshwardas on the one hand and Hira Singh and others on the other and was a sale of his mortgage rights. The deed recites the mortgages executed by the said Teja in favour of Dharamdas, the fact of Parmeshwardas being in possession as Dharamdassthe deed of mortgage, dated April 8, 1902 (Ex. E) and the fact that he was by this deed selling his mortgage rights for Rs. 1,290. These statements were clearly made for the purpose of describing his own rights which he was selling under this deed. But there is nothing in this document to show that he referred to the said mortgages with the intention of admitting his jural relationship with his mortgagors and, therefore, of his subsisting liability as the mortgagee thereunder of being redeemed. The third document Ex. P. 15 is the plaint in Suit No. 31 of 1903. Here again the statement as to Parmeshwardas having sold his mortgage rights to the plaintiffs was made with a view to trace their own rights as against the defendants and not with any consciousness or intention to admit the jural relationship between them or to admit the fact of the said mortgages being subsisting at the time when the plaint was filed. The statement in the plaint was made not in relation to the said mortgages but with reference to their own rights under the said deed of sale of mortgage rights in their favour. The fourth document is the written statement in Suit No. 50 of 1903 where the right of the plaintiffs in that suit to redeem has been specifically denied. The statement, therefore, cannot be, availed of as an acknowledgment of a subsisting jural relationship or of a subsisting right and a corresponding liability of being redeemed.12. In the light of the tests laid down in Khan Bahadur Mazdas case, (1962) 1 SCR 140 : (AIR 1961 SC 1236 ) (Supra) none of these statements can be regarded as acknowledgment within the meaning of S. 19. The High Court, therefore, was right in refusing to treat these statements or any of them as acknowledgments and was equally right in its conclusion that the appellants suit was barred by limitation.
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SRS Advertising & Marketing Pvt. Ltd. & Ors Vs. Mr. Kamal Garg & Anr | M. R. Shah, J. 1. Feeling aggrieved and dissatisifed with the impugned judgment and order dated 22.11.2021 passed by the High Court of Delhi in Writ Petition (Civil) No.12530 of 2021 and in Review Petition No.197 of 2021, the original Respondent No.2 has preferred the present appeals. 2. That Respondent No.1 herein – original writ petitioner was the auction purchaser, who purchased the properties which were auctioned in pursuance of Recovery Certificate No.6/2016 which was in favour of the Corporation Bank (now merged with the Union Bank of India) for a sum of Rs.85 lakhs. The reserved price of the properties was fixed at Rs.54 lakhs. Respondent No.1 – original writ petitioner made the highest bid of Rs.85 lakhs. After making the said bid and after making the earnest money deposit to the tune of Rs.21,25,000/- (being 25% of the bid price) Respondent no.1 – the original writ petitioner moved an application before the Recovery Officer seeking some clarity in the matter. The same was replied to by the Bank. However, thereafter the Recovery Officer dismissed the application of the petitioner on 28.11.2019 and forfeited 10% of the amount deposited by him. 2.1 Aggrieved by the order of the Recovery Officer, Respondent No.1 herein had preferred an appeal being Appeal No.21 of 2019 before DRT-II, Delhi on 19.12.2019. The said appeal came to be dismissed by the DRT-II vide order dated 18.03.2020. Thereafter Respondent No.1 herein - original writ petitioner preferred an appeal bearing No.91 of 2019 before the DRAT challenging the order of DRT dated 18.03.2020. The DRAT, however did not grant any interim relief to him and consequently Respondent - Bank herein sought to put the property to auction on 10.11.2021. The application to seek interim relief from the DRAT was renotified on 17.11.2021 i.e. after the date of the proposed auction and therefore apprehending that his interim relief application would become infructuous, Respondent No.1 herein preferred the present writ petition before the High Court. Though the appeal before the DRAT was pending and what was challenged before the High Court was with regard to not granting any interim relief against the auction, by the impugned judgment and order the High Court has disposed of the writ petition by granting one further opportunity to the original writ petitioner to deposit the balance amount along with the damages quantified at Rs.5 lakhs. The High Court has passed the following order: 13. In the aforesaid circumstances, we grant one opportunity to the petitioner to deposit the balance amount along with damages quantified at Rs.5 Lakhs, within the next two weeks. The deposit shall be made with the respondent bank within the aforesaid period. In case, the deposit is made in these terms, the respondent bank shall proceed to deliver the possession of the properties to the petitioner. The Recovery Officer is directed to release the 25% of the amount deposited by the petitioner with him, along with up to date interest, within the next 10 days to the respondent Bank, and to confirm the sale. The Recovery Officer shall take all steps under the law to perfect the title of the petitioner. 2.2 Feeling aggrieved and dissatisifed with the impugned judgment and order passed by the High Court, original respondent No.2 – original borrower has preferred the present Civil Appeal Nos. 1302-1303 of 2022. 2.3 After the judgment and order dated 22.11.2011 passed in Writ Petition (C) No.12530 of 2021, a review petition was filed which has been dismissed by the High Court which is the subject matter of Civil Appeal Nos.1302-1303 of 2022. 3. We have heard learned counsel for the respective parties and perused the impugned judgment and order. 3.1 Having gone through the impugned judgment and order passed by the High Court, we are of the opinion that the same passed by the High Court is unsustainable. 3.2 The High Court has not properly appreciated the fact that what was challenged before it was regarding non-grant of any interim relief pending the appeal before the DRAT. Main appeal was yet to be considered by the DRAT on merits. From the impugned judgment and order passed by the High Court, it appears that the High Court has decided and disposed of the writ petition as if the High Court was considering the final decision of the DRAT. The order passed by the DRT confirming the order passed by the Recovery Officer forfeiting 10% amount deposited by the auction purchaser was yet to be decided by the DRAT. Therefore, the High Court as such has gone beyond the scope and ambit of the proceedings before it. 3.3 By passing the impugned judgment and order the High Court has as such made the proceedings before the DRAT infructuous, as after the impugned judgment and order nothing further is required to be decided by the DRAT. Therefore, the High Court has exceeded in its jurisdiction by passing the impugned judgment and order. | 1[ds]3.1 Having gone through the impugned judgment and order passed by the High Court, we are of the opinion that the same passed by the High Court is unsustainable.3.2 The High Court has not properly appreciated the fact that what was challenged before it was regarding non-grant of any interim relief pending the appeal before the DRAT. Main appeal was yet to be considered by the DRAT on merits. From the impugned judgment and order passed by the High Court, it appears that the High Court has decided and disposed of the writ petition as if the High Court was considering the final decision of the DRAT. The order passed by the DRT confirming the order passed by the Recovery Officer forfeiting 10% amount deposited by the auction purchaser was yet to be decided by the DRAT. Therefore, the High Court as such has gone beyond the scope and ambit of the proceedings before it.3.3 By passing the impugned judgment and order the High Court has as such made the proceedings before the DRAT infructuous, as after the impugned judgment and order nothing further is required to be decided by the DRAT. Therefore, the High Court has exceeded in its jurisdiction by passing the impugned judgment and order. | 1 | 893 | 224 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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M. R. Shah, J. 1. Feeling aggrieved and dissatisifed with the impugned judgment and order dated 22.11.2021 passed by the High Court of Delhi in Writ Petition (Civil) No.12530 of 2021 and in Review Petition No.197 of 2021, the original Respondent No.2 has preferred the present appeals. 2. That Respondent No.1 herein – original writ petitioner was the auction purchaser, who purchased the properties which were auctioned in pursuance of Recovery Certificate No.6/2016 which was in favour of the Corporation Bank (now merged with the Union Bank of India) for a sum of Rs.85 lakhs. The reserved price of the properties was fixed at Rs.54 lakhs. Respondent No.1 – original writ petitioner made the highest bid of Rs.85 lakhs. After making the said bid and after making the earnest money deposit to the tune of Rs.21,25,000/- (being 25% of the bid price) Respondent no.1 – the original writ petitioner moved an application before the Recovery Officer seeking some clarity in the matter. The same was replied to by the Bank. However, thereafter the Recovery Officer dismissed the application of the petitioner on 28.11.2019 and forfeited 10% of the amount deposited by him. 2.1 Aggrieved by the order of the Recovery Officer, Respondent No.1 herein had preferred an appeal being Appeal No.21 of 2019 before DRT-II, Delhi on 19.12.2019. The said appeal came to be dismissed by the DRT-II vide order dated 18.03.2020. Thereafter Respondent No.1 herein - original writ petitioner preferred an appeal bearing No.91 of 2019 before the DRAT challenging the order of DRT dated 18.03.2020. The DRAT, however did not grant any interim relief to him and consequently Respondent - Bank herein sought to put the property to auction on 10.11.2021. The application to seek interim relief from the DRAT was renotified on 17.11.2021 i.e. after the date of the proposed auction and therefore apprehending that his interim relief application would become infructuous, Respondent No.1 herein preferred the present writ petition before the High Court. Though the appeal before the DRAT was pending and what was challenged before the High Court was with regard to not granting any interim relief against the auction, by the impugned judgment and order the High Court has disposed of the writ petition by granting one further opportunity to the original writ petitioner to deposit the balance amount along with the damages quantified at Rs.5 lakhs. The High Court has passed the following order: 13. In the aforesaid circumstances, we grant one opportunity to the petitioner to deposit the balance amount along with damages quantified at Rs.5 Lakhs, within the next two weeks. The deposit shall be made with the respondent bank within the aforesaid period. In case, the deposit is made in these terms, the respondent bank shall proceed to deliver the possession of the properties to the petitioner. The Recovery Officer is directed to release the 25% of the amount deposited by the petitioner with him, along with up to date interest, within the next 10 days to the respondent Bank, and to confirm the sale. The Recovery Officer shall take all steps under the law to perfect the title of the petitioner. 2.2 Feeling aggrieved and dissatisifed with the impugned judgment and order passed by the High Court, original respondent No.2 – original borrower has preferred the present Civil Appeal Nos. 1302-1303 of 2022. 2.3 After the judgment and order dated 22.11.2011 passed in Writ Petition (C) No.12530 of 2021, a review petition was filed which has been dismissed by the High Court which is the subject matter of Civil Appeal Nos.1302-1303 of 2022. 3. We have heard learned counsel for the respective parties and perused the impugned judgment and order. 3.1 Having gone through the impugned judgment and order passed by the High Court, we are of the opinion that the same passed by the High Court is unsustainable. 3.2 The High Court has not properly appreciated the fact that what was challenged before it was regarding non-grant of any interim relief pending the appeal before the DRAT. Main appeal was yet to be considered by the DRAT on merits. From the impugned judgment and order passed by the High Court, it appears that the High Court has decided and disposed of the writ petition as if the High Court was considering the final decision of the DRAT. The order passed by the DRT confirming the order passed by the Recovery Officer forfeiting 10% amount deposited by the auction purchaser was yet to be decided by the DRAT. Therefore, the High Court as such has gone beyond the scope and ambit of the proceedings before it. 3.3 By passing the impugned judgment and order the High Court has as such made the proceedings before the DRAT infructuous, as after the impugned judgment and order nothing further is required to be decided by the DRAT. Therefore, the High Court has exceeded in its jurisdiction by passing the impugned judgment and order.
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3.1 Having gone through the impugned judgment and order passed by the High Court, we are of the opinion that the same passed by the High Court is unsustainable.3.2 The High Court has not properly appreciated the fact that what was challenged before it was regarding non-grant of any interim relief pending the appeal before the DRAT. Main appeal was yet to be considered by the DRAT on merits. From the impugned judgment and order passed by the High Court, it appears that the High Court has decided and disposed of the writ petition as if the High Court was considering the final decision of the DRAT. The order passed by the DRT confirming the order passed by the Recovery Officer forfeiting 10% amount deposited by the auction purchaser was yet to be decided by the DRAT. Therefore, the High Court as such has gone beyond the scope and ambit of the proceedings before it.3.3 By passing the impugned judgment and order the High Court has as such made the proceedings before the DRAT infructuous, as after the impugned judgment and order nothing further is required to be decided by the DRAT. Therefore, the High Court has exceeded in its jurisdiction by passing the impugned judgment and order.
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The Brahmachari Research Institute, Calcutta-4 Vs. Their Workmen | properly so called.5. This brings us to the provisions of the Act with respect to retrenchment. "Retrenchment" is defined under S. 2 (oo) and means"the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (c) termination of the service of a workman on the ground of continued ill-health".If this definition is compared with the provisions of the Award, it will be found that the Award provides payment not only for retrenchment as such but also for other termination of service which is specifically excepted from the definition of "retrenchment". Clauses (a) and (B) of S. 2 (oo) are provided in the Award by the words "cases of resignation with the consent of the management". Similarly, clause (c) of S. 2 (oo) is provided for by the words "termination of service by the company for any reason other than misconduct". It is, therefore, obvious that the Award provides not only for payment on retrenchment but also for payment on termination of service for any reason other than misconduct and on retirement. It is thus a composite scheme; and merely because the payment is called gratuity even where it is payable on account of retrenchment, it cannot be anything other than compensation so far as the part of the Award relating to retrenchment is concerned.6. Chapter VA, containing Ss. 25F and 25J, with which we are concerned, was added in the Act by Act 43 of 1953 with effect from 24-10-1953. The reason for this addition was that though there were schemes in force in many concerns for payment to workmen on retrenchment, there were many other concerns where no such schemes were in force and the workmen got nothing on retrenchment unless there was an award by a Tribunal. Besides, where schemes were in force or awards were made rates of payment on retrenchment varied. The legislature, therefore, thought it fit by enacting Chapter VA to provide by S. 25F a uniform minimum payment to workmen on retrenchment. This payment was called compensation. Section 25F provides that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched without payment of compensation which shall be equivalent to fifteen days average pay for every completed year of service or any part thereof in excess of six months. Then comes S. 25J, sub-s. (1) whereof provides that the provisions of Chapter VA shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders. There is, however, a proviso to sub-s. (1), which says that nothing contained in the Act shall have effect to derogate from any right which a workman has under any award for the time being in operation or any contract with the employer.This clearly means that if by any award or contract a workman is entitled to something more as retrenchment compensation than is provided by S. 25F, the workman will be entitled to get that and the provisions of S. 25F will not derogate from that right of the workman, i.e., will not reduce the compensation provided under the award or contract to the level provided under S. 25F.It is obvious that it was not the intention of the legislature that a workman on retrenchment should get compensation twice, i.e., once under the Act and once under the scheme in force providing for retrenchment compensation, by whatever name the payment might have been called. We cannot agree with the Appellate Tribunal that the payment of gratuity in the event of retrenchment has nothing to do with the compensation payable to a workman under S. 25F of the Act. The Appellate Tribunal seems to have been carried away by the word "gratuity" used in the Award and it seems to think that gratuity on retrenchment is something different from compensation on retrenchment. We are of opinion that this is not correct.Whether it is called "gratuity" or "compensation", it is in substance a payment to the workman on account of retrenchment; and if a scheme like the present specifically provides payment for retrenchment as defined in S. 2(oo), we see no justification for compelling that payment twice over, once under S. 25F and again under the scheme in force in the concern. The matter would be different if the scheme in force in any concern or any award provides gratuity which is different in nature from the retrenchment compensation under S. 25F.We also cannot agree with the Appellate Tribunal that this gratuity under the Award in this case is not a retrenchment benefit. We have already analysed the Award above and shown that it deals with three contingencies, and one of them is payment due on retrenchment. On the terms, therefore, of the Award in this case it must be held that gratuity provided therein on retrenchment is nothing more nor less than retrenchment compensation provided under S. 25F of the Act, and the workmen are only entitled to one or the other, whichever is more advantageous to them in view of S. 25J. In the circumstances we are of opinion that the Industrial Tribunal was right in holding that the scheme of the Award in this case providing for gratuity on retrenchment was exactly the same as compensation provided under S. 25F, and as the provisions of S. 25F are better than the provisions of the Award in respect of retrenchment the workmen would be entitled to compensation provided under S. 25F only, and not both under that section and under the Award. The appellant has already paid the compensation provided under S. 25F; the workmen therefore are not entitled to anything more under the Award. | 1[ds]4. It will be seen that the Award is a composite scheme providing for what is termed gratuity therein under three conditions, namely, (I) where there is retrenchment, (ii) where there is termination of service for any reason other than misconduct, and (iii) where there is resignation with the consent of the management.Now, under this Award, it is obvious that this payment on retrenchment though called gratuity is really nothing more nor less than compensation on account of retrenchment. Further it is obvious from the terms of the Award that a retrenched workman could claim gratuity under the Award only on account of retrenchment and could not claim it under the other two conditions therein. In other words, on a fair and reasonable construction of the Award, what the retrenched workman got is only compensation for retrenchment and not any amount by way of gratuity properly sois, therefore, obvious that the Award provides not only for payment on retrenchment but also for payment on termination of service for any reason other than misconduct and on retirement. It is thus a composite scheme; and merely because the payment is called gratuity even where it is payable on account of retrenchment, it cannot be anything other than compensation so far as the part of the Award relating to retrenchment isclearly means that if by any award or contract a workman is entitled to something more as retrenchment compensation than is provided by S. 25F, the workman will be entitled to get that and the provisions of S. 25F will not derogate from that right of the workman, i.e., will not reduce the compensation provided under the award or contract to the level provided under S. 25F.It is obvious that it was not the intention of the legislature that a workman on retrenchment should get compensation twice, i.e., once under the Act and once under the scheme in force providing for retrenchment compensation, by whatever name the payment might have been called. We cannot agree with the Appellate Tribunal that the payment of gratuity in the event of retrenchment has nothing to do with the compensation payable to a workman under S. 25F of the Act. The Appellate Tribunal seems to have been carried away by the word "gratuity" used in the Award and it seems to think that gratuity on retrenchment is something different from compensation on retrenchment. We are of opinion that this is not correct.Whether it is called "gratuity" or "compensation", it is in substance a payment to the workman on account of retrenchment; and if a scheme like the present specifically provides payment for retrenchment as defined in S. 2(oo), we see no justification for compelling that payment twice over, once under S. 25F and again under the scheme in force in the concern. The matter would be different if the scheme in force in any concern or any award provides gratuity which is different in nature from the retrenchment compensation under S. 25F.We also cannot agree with the Appellate Tribunal that this gratuity under the Award in this case is not a retrenchment benefit. We have already analysed the Award above and shown that it deals with three contingencies, and one of them is payment due on retrenchment. On the terms, therefore, of the Award in this case it must be held that gratuity provided therein on retrenchment is nothing more nor less than retrenchment compensation provided under S. 25F of the Act, and the workmen are only entitled to one or the other, whichever is more advantageous to them in view of S. 25J. In the circumstances we are of opinion that the Industrial Tribunal was right in holding that the scheme of the Award in this case providing for gratuity on retrenchment was exactly the same as compensation provided under S. 25F, and as the provisions of S. 25F are better than the provisions of the Award in respect of retrenchment the workmen would be entitled to compensation provided under S. 25F only, and not both under that section and under the Award. The appellant has already paid the compensation provided under S. 25F; the workmen therefore are not entitled to anything more under the Award. | 1 | 2,032 | 765 | ### Instruction:
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properly so called.5. This brings us to the provisions of the Act with respect to retrenchment. "Retrenchment" is defined under S. 2 (oo) and means"the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (c) termination of the service of a workman on the ground of continued ill-health".If this definition is compared with the provisions of the Award, it will be found that the Award provides payment not only for retrenchment as such but also for other termination of service which is specifically excepted from the definition of "retrenchment". Clauses (a) and (B) of S. 2 (oo) are provided in the Award by the words "cases of resignation with the consent of the management". Similarly, clause (c) of S. 2 (oo) is provided for by the words "termination of service by the company for any reason other than misconduct". It is, therefore, obvious that the Award provides not only for payment on retrenchment but also for payment on termination of service for any reason other than misconduct and on retirement. It is thus a composite scheme; and merely because the payment is called gratuity even where it is payable on account of retrenchment, it cannot be anything other than compensation so far as the part of the Award relating to retrenchment is concerned.6. Chapter VA, containing Ss. 25F and 25J, with which we are concerned, was added in the Act by Act 43 of 1953 with effect from 24-10-1953. The reason for this addition was that though there were schemes in force in many concerns for payment to workmen on retrenchment, there were many other concerns where no such schemes were in force and the workmen got nothing on retrenchment unless there was an award by a Tribunal. Besides, where schemes were in force or awards were made rates of payment on retrenchment varied. The legislature, therefore, thought it fit by enacting Chapter VA to provide by S. 25F a uniform minimum payment to workmen on retrenchment. This payment was called compensation. Section 25F provides that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched without payment of compensation which shall be equivalent to fifteen days average pay for every completed year of service or any part thereof in excess of six months. Then comes S. 25J, sub-s. (1) whereof provides that the provisions of Chapter VA shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders. There is, however, a proviso to sub-s. (1), which says that nothing contained in the Act shall have effect to derogate from any right which a workman has under any award for the time being in operation or any contract with the employer.This clearly means that if by any award or contract a workman is entitled to something more as retrenchment compensation than is provided by S. 25F, the workman will be entitled to get that and the provisions of S. 25F will not derogate from that right of the workman, i.e., will not reduce the compensation provided under the award or contract to the level provided under S. 25F.It is obvious that it was not the intention of the legislature that a workman on retrenchment should get compensation twice, i.e., once under the Act and once under the scheme in force providing for retrenchment compensation, by whatever name the payment might have been called. We cannot agree with the Appellate Tribunal that the payment of gratuity in the event of retrenchment has nothing to do with the compensation payable to a workman under S. 25F of the Act. The Appellate Tribunal seems to have been carried away by the word "gratuity" used in the Award and it seems to think that gratuity on retrenchment is something different from compensation on retrenchment. We are of opinion that this is not correct.Whether it is called "gratuity" or "compensation", it is in substance a payment to the workman on account of retrenchment; and if a scheme like the present specifically provides payment for retrenchment as defined in S. 2(oo), we see no justification for compelling that payment twice over, once under S. 25F and again under the scheme in force in the concern. The matter would be different if the scheme in force in any concern or any award provides gratuity which is different in nature from the retrenchment compensation under S. 25F.We also cannot agree with the Appellate Tribunal that this gratuity under the Award in this case is not a retrenchment benefit. We have already analysed the Award above and shown that it deals with three contingencies, and one of them is payment due on retrenchment. On the terms, therefore, of the Award in this case it must be held that gratuity provided therein on retrenchment is nothing more nor less than retrenchment compensation provided under S. 25F of the Act, and the workmen are only entitled to one or the other, whichever is more advantageous to them in view of S. 25J. In the circumstances we are of opinion that the Industrial Tribunal was right in holding that the scheme of the Award in this case providing for gratuity on retrenchment was exactly the same as compensation provided under S. 25F, and as the provisions of S. 25F are better than the provisions of the Award in respect of retrenchment the workmen would be entitled to compensation provided under S. 25F only, and not both under that section and under the Award. The appellant has already paid the compensation provided under S. 25F; the workmen therefore are not entitled to anything more under the Award.
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4. It will be seen that the Award is a composite scheme providing for what is termed gratuity therein under three conditions, namely, (I) where there is retrenchment, (ii) where there is termination of service for any reason other than misconduct, and (iii) where there is resignation with the consent of the management.Now, under this Award, it is obvious that this payment on retrenchment though called gratuity is really nothing more nor less than compensation on account of retrenchment. Further it is obvious from the terms of the Award that a retrenched workman could claim gratuity under the Award only on account of retrenchment and could not claim it under the other two conditions therein. In other words, on a fair and reasonable construction of the Award, what the retrenched workman got is only compensation for retrenchment and not any amount by way of gratuity properly sois, therefore, obvious that the Award provides not only for payment on retrenchment but also for payment on termination of service for any reason other than misconduct and on retirement. It is thus a composite scheme; and merely because the payment is called gratuity even where it is payable on account of retrenchment, it cannot be anything other than compensation so far as the part of the Award relating to retrenchment isclearly means that if by any award or contract a workman is entitled to something more as retrenchment compensation than is provided by S. 25F, the workman will be entitled to get that and the provisions of S. 25F will not derogate from that right of the workman, i.e., will not reduce the compensation provided under the award or contract to the level provided under S. 25F.It is obvious that it was not the intention of the legislature that a workman on retrenchment should get compensation twice, i.e., once under the Act and once under the scheme in force providing for retrenchment compensation, by whatever name the payment might have been called. We cannot agree with the Appellate Tribunal that the payment of gratuity in the event of retrenchment has nothing to do with the compensation payable to a workman under S. 25F of the Act. The Appellate Tribunal seems to have been carried away by the word "gratuity" used in the Award and it seems to think that gratuity on retrenchment is something different from compensation on retrenchment. We are of opinion that this is not correct.Whether it is called "gratuity" or "compensation", it is in substance a payment to the workman on account of retrenchment; and if a scheme like the present specifically provides payment for retrenchment as defined in S. 2(oo), we see no justification for compelling that payment twice over, once under S. 25F and again under the scheme in force in the concern. The matter would be different if the scheme in force in any concern or any award provides gratuity which is different in nature from the retrenchment compensation under S. 25F.We also cannot agree with the Appellate Tribunal that this gratuity under the Award in this case is not a retrenchment benefit. We have already analysed the Award above and shown that it deals with three contingencies, and one of them is payment due on retrenchment. On the terms, therefore, of the Award in this case it must be held that gratuity provided therein on retrenchment is nothing more nor less than retrenchment compensation provided under S. 25F of the Act, and the workmen are only entitled to one or the other, whichever is more advantageous to them in view of S. 25J. In the circumstances we are of opinion that the Industrial Tribunal was right in holding that the scheme of the Award in this case providing for gratuity on retrenchment was exactly the same as compensation provided under S. 25F, and as the provisions of S. 25F are better than the provisions of the Award in respect of retrenchment the workmen would be entitled to compensation provided under S. 25F only, and not both under that section and under the Award. The appellant has already paid the compensation provided under S. 25F; the workmen therefore are not entitled to anything more under the Award.
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CENTRAL ORGANISATION FOR RAILWAY ELECTRIFICATION Vs. M/S ECI SPIC SMO MCML (JV) A JOINT VENTURE COMPANY | party in appointing an arbitrator would get counter-balanced by equal power with the other party. In para (21), it was held as under:- 21. ….The next sentences in the paragraph, further show that cases where both the parties could nominate respective arbitrators of their choice were found to be completely a different situation. The reason is clear that whatever advantage a party may derive by nominating an arbitrator of its choice would get counter balanced by equal power with the other party….. 35. As discussed earlier, after Arbitration and Conciliation (Amendment) Act, 2015, the Railway Board vide notification dated 16.11.2016 has amended and notified Clause 64 of the General Conditions of Contract. As per Clause 64(3)(a)(ii) [where applicability of Section 12(5) of the Act has been waived off], in a case not covered by Clause 64(3)(a)(i), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers not below the rank of Junior Administrative Grade or two Railway Gazetted Officers not below the rank of Junior Administrative Grade and a retired Railway Officer retired not below the rank of Senior Administrative Grade Officer, as the arbitrators. For this purpose, the General Manager, Railway will send a panel of at least four names of Gazetted Railway Officers of one or more departments of the Railway within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest to General Manager at least two names out of the panel for appointment as contractors nominees within thirty days from the date of dispatch of the request from the Railway. The General Manager shall appoint at least one out of them as the contractors nominee and will also simultaneously appoint balance number of arbitrators from the panel or from outside the panel duly indicating the Presiding Officer from amongst the three arbitrators so appointed. The General Manager shall complete the exercise of appointing the Arbitral Tribunal within thirty days from the date of the receipt of the names of contractors nominees. 36. Clause 64(3)(b) of GCC deals with appointment of arbitrator where applicability of Section 12(5) of the Act has not been waived off. In terms of Clause 64(3)(b) of GCC, the Arbitral Tribunal shall consist of a panel of three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers as the arbitrators. For this purpose, the Railway will send a panel of at least four names of retired Railway Officers empanelled to work as arbitrators indicating their retirement date to the contractor within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest the General Manger at least two names out of the panel for appointment of contractors nominees within thirty days from the date of dispatch of the request of the Railway. The General Manager shall appoint at least one out of them as the contractors nominee and will simultaneously appoint the remaining arbitrators from the panel or from outside the panel, duly indicating the Presiding Officer from amongst the three arbitrators. The exercise of appointing Arbitral Tribunal shall be completed within thirty days from the receipt of names of contractors nominees. Thus, the right of the General Manager in formation of Arbitral Tribunal is counterbalanced by respondents power to choose any two from out of the four names and the General Manager shall appoint at least one out of them as the contractors nominee 37. In the present matter, after the respondent had sent the letter dated 27.07.2018 calling upon the appellant to constitute Arbitral Tribunal, the appellant sent the communication dated 24.09.2018 nominating the panel of serving officers of Junior Administrative Grade to act as arbitrators and asked the respondent to select any two from the list and communicate to the office of the General Manager. By the letter dated 26.09.2018, the respondent conveyed their disagreement in waiving the applicability of Section 12(5) of the Amendment Act, 2015. In response to the respondents letter dated 26.09.2018, the appellant has sent a panel of four retired Railway Officers to act as arbitrators giving the details of those retired officers and requesting the respondent to select any two from the list and communicate to the office of the General Manager. Since the respondent has been given the power to select two names from out of the four names of the panel, the power of the appellant nominating its arbitrator gets counter-balanced by the power of choice given to the respondent. Thus, the power of the General Manager to nominate the arbitrator is counter-balanced by the power of the respondent to select any of the two nominees from out of the four names suggested from the panel of the retired officers. In view of the modified Clauses 64(3)(a)(ii) and 64(3)(b) of GCC, it cannot therefore be said that the General Manager has become ineligible to act as the arbitrator. We do not find any merit in the contrary contention of the respondent. The decision in TRF Limited is not applicable to the present case. 38. There is an express provision in the modified clauses of General Conditions of Contract, as per Clauses 64(3)(a)(ii) and 64(3)(b), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers [Clause 64(3)(a)(ii)] and three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers [Clause 64(3)(b)]. When the agreement specifically provides for appointment of Arbitral Tribunal consisting of three arbitrators from out of the panel serving or retired Railway Officers, the appointment of the arbitrators should be in terms of the agreement as agreed by the parties. That being the conditions in the agreement between the parties and the General Conditions of the Contract, the High Court was not justified in appointing an independent sole arbitrator ignoring Clauses 64(3)(a)(ii) and 64(3) (b) of the General Conditions of Contract and the impugned orders cannot be sustained. | 1[ds]16. After coming into force of Arbitration and Conciliation (Amendment) Act, 2015, the Government of India, Ministry of Railways made a modification to Clause 64 of the General Conditions of Contract and the Railway Board issued a notification dated 16.11.2016 in this regard. The modified Clause 64(3)(a)(i) (where applicability of Section 12(5) of the Act has been waived off) inter alia provided that in case where the total value of all claims in question added together does not exceed rupees one crore, the arbitral tribunal shall consist of a sole arbitrator who shall be a Gazetted Officer of Railways not below JA Grade nominated by the General Manager. In terms of Clause 64(3)(a)(i), the sole arbitrator shall be appointed within sixty days from the day when a written and valid demand for arbitration is received by the General Manager. In the present case, since the value of the work contract is worth more than Rs.165 crores, Clause 64(3)(a)(i) is not applicable19. After coming into force of the Arbitration and Conciliation (Amendment) Act, 2015, when Clause 64 of the General Conditions of Contract has been modified inter alia providing for constitution of Arbitral Tribunal consisting of three arbitrators either serving or retired railway officers, the High Court is not justified in appointing an independent sole arbitrator without resorting to the procedure for appointment of the arbitrator as prescribed under Clause 64(3)(b) of the General Conditions of Contract20. It is pertinent to note that even in the application filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, the respondent prayed for appointment of a sole arbitrator in terms of Clause 1.2.54(b)(i) of the Tender Agreement/Clause 64 of the General Conditions of Contract for adjudicating the disputes which have arisen between the parties. In the petition filed under Section 11(6) of the Act, the respondent prayed for appointment of one Shri Ashwani Kumar Kapoor to act as the arbitrator. Thus, the respondent itself sought for appointment of arbitrator in terms of Clause 64 of the General Conditions of Contract. The appointment of Shri Ashwani Kumar Kapoor as arbitrator, of course, was not agreeable to the appellant, since it was found that said Shri Ashwani Kumar Kapoor was not in the panel of arbitrators and therefore, could not be considered for appointment as arbitrator. As the value of the work contract was worth more than Rs.165 crores, the dispute can be resolved only by a panel of three arbitrators in terms of Clause 64(3)(b) of the General Conditions of Contract. The respondent was not right in seeking for appointment of a sole arbitrator in terms of Clause 1.2.54(b)(i) of the Tender Agreement/Clause 64 of the General Conditions of Contract22. Applying ratio of the Parmar Construction Company, in Pradeep Vinod Construction Company (2019) SCC Online SC 1467, the Supreme Court held that the appointment of arbitrator should be in terms of the agreement and the High Court was not right in appointing an independent arbitrator ignoring Clause 64 of the General Conditions of Contract. As held in Parmar Construction Company and Pradeep Vinod Construction Company, the High Court was not justified in appointing an independent arbitrator without resorting to the procedure for appointment of the arbitrators which has been prescribed under the General Conditions of ContractRE: Contention:- Retired Railway Officers are not eligible to be appointed as arbitrators under Section 12(5) read with Schedule VII of the Act and were statutorily made ineligible to be appointed as an arbitrator26. The same view was reiterated in Government of Haryana PWD Haryana (B and R) Branch v. G.F. Toll Road Private Limited and Others (2019) 3 SCC 505 wherein, the Supreme Court held that the appointment of a retired employee of a party to the agreement cannot be assailed on the ground that he is a retired/former employee of one of the parties to the agreement. Absolutely, there is no bar under Section 12(5) of the Arbitration and Conciliation (Amendment) Act, 2015 for appointment of a retired employee to act as an arbitrator27. By the letter dated 25.10.2018, the appellant has forwarded a list of four retired railway officers on its panel thereby giving a wide choice to the respondent to suggest any two names to be nominated as arbitrators out of which, one will be nominated as the arbitrator representing the respondent-Contractor. As held in Voestalpine Schienen Gmbh (2017) 4 SCC 665 , the very reason for empanelling the retired railway officers is to ensure that the technical aspects of the dispute are suitably resolved by utilising their expertise when they act as arbitrators. Merely because the panel of the arbitrators are the retired employees who have worked in the Railways, it does not make them ineligible to act as the arbitratorsRE: Contention:- Failure to act in terms of the Contract in not responding within thirty days from the date of the request30. As discussed earlier, as per the modified Clause 64(3)(b) of GCC, when a written and valid demand for arbitration is received by the General Manager, the Railway will send a panel of at least four names of retired railway officers empanelled to work as arbitrators. The contractor will be asked to suggest to the General Manager at least two names out of the panel for appointment as contractors nominee within thirty days from the date of dispatch of the request by the Railway. Vide letter dated 27.07.2018, the respondent has sought for appointment of an arbitrator for resolving the disputes. The appellant by its letter dated 24.09.2018 (which is well within the period of sixty days) in terms of Clause 64(3)(a)(ii) (where applicability of Section 12(5) of the Act has been waived off) sent a panel of four serving railway officers of JA Grade to act as arbitrators and requested the respondent to select any two from the list and communicate to the office at the earliest for formation of Arbitration Tribunal. By the letter dated 26.09.2018, the respondent conveyed their disagreement in waiving the applicability of Section 12(5) of the Amendment Act, 2015. By the letter dated 25.10.2018, in terms of Clause 64(3)(b) of GCC (where applicability of Section 12(5) has not been waived off) the appellant has nominated a panel of four retired railway officers to act as arbitrators and requested the respondent to select any two from the list and communicate to the appellant within thirty days from the date of the letter for formation of Arbitration Tribunal. The respondent has neither sent its reply nor selected two names from the list and replied to the appellant. Without responding to the appellant, the respondent has filed petition under Section 11(6) of the Arbitration and Conciliation Act before the High Court on 17.12.2018. When the respondent has not sent any reply to the communication dated 25.10.2018, the respondent is not justified in contending that the appointment of Arbitral Tribunal has not been made before filing of the application under Section 11 of the Act and that the right of the appellant to constitute Arbitral Tribunal is extinguished on filing of the application under Section 11(6) of the ActRE: Contention:- General Manager himself becoming ineligible by operation of law to be appointed as arbitrator, is not eligible to nominate the arbitrator35. As discussed earlier, after Arbitration and Conciliation (Amendment) Act, 2015, the Railway Board vide notification dated 16.11.2016 has amended and notified Clause 64 of the General Conditions of Contract. As per Clause 64(3)(a)(ii) [where applicability of Section 12(5) of the Act has been waived off], in a case not covered by Clause 64(3)(a)(i), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers not below the rank of Junior Administrative Grade or two Railway Gazetted Officers not below the rank of Junior Administrative Grade and a retired Railway Officer retired not below the rank of Senior Administrative Grade Officer, as the arbitrators. For this purpose, the General Manager, Railway will send a panel of at least four names of Gazetted Railway Officers of one or more departments of the Railway within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest to General Manager at least two names out of the panel for appointment as contractors nominees within thirty days from the date of dispatch of the request from the Railway. The General Manager shall appoint at least one out ofthem as the contractors nominee and will also simultaneously appoint balance number of arbitrators from the panel or from outside the panel duly indicating the Presiding Officer from amongst the three arbitrators so appointed. The General Manager shall complete the exercise of appointing the Arbitral Tribunal within thirty days from the date of the receipt of the names of contractors nominees36. Clause 64(3)(b) of GCC deals with appointment of arbitrator where applicability of Section 12(5) of the Act has not been waived off. In terms of Clause 64(3)(b) of GCC, the Arbitral Tribunal shall consist of a panel of three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers as the arbitrators. For this purpose, the Railway will send a panel of at least four names of retired Railway Officers empanelled to work as arbitrators indicating their retirement date to the contractor within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest the General Manger at least two names out of the panel for appointment of contractors nominees within thirty days from the date of dispatch of the request of the Railway. The General Manager shall appoint at least one out of them as the contractors nominee and will simultaneously appoint the remaining arbitrators from the panel or from outside the panel, duly indicating the Presiding Officer from amongst the three arbitrators. The exercise of appointing Arbitral Tribunal shall be completed within thirty days from the receipt of names of contractors nominees. Thus, the right of the General Manager in formation of Arbitral Tribunal is counterbalanced by respondents power to choose any two from out of the four names and the General Manager shall appoint at least one out of them as the contractors nominee37. In the present matter, after the respondent had sent the letter dated 27.07.2018 calling upon the appellant to constitute Arbitral Tribunal, the appellant sent the communication dated 24.09.2018 nominating the panel of serving officers of Junior Administrative Grade to act as arbitrators and asked the respondent to select any two from the list and communicate to the office of the General Manager. By the letter dated 26.09.2018, the respondent conveyed their disagreement in waiving the applicability of Section 12(5) of the Amendment Act, 2015. In response to the respondents letter dated 26.09.2018, the appellant has sent a panel of four retired Railway Officers to act as arbitrators giving the details of those retired officers and requesting the respondent to select any two from the list and communicate to the office of the General Manager. Since the respondent has been given the power to select two names from out of the four names of the panel, the power of the appellant nominating its arbitrator gets counter-balanced by the power of choice given to the respondent. Thus, the power of the General Manager to nominate the arbitrator is counter-balanced by the power of the respondent to select any of the two nominees from out of the four names suggested from the panel of the retired officers. In view of the modified Clauses 64(3)(a)(ii) and 64(3)(b) of GCC, it cannot therefore be said that the General Manager has become ineligible to act as the arbitrator. We do not find any merit in the contrary contention of the respondent. The decision in TRF Limited is not applicable to the present case38. There is an express provision in the modified clauses of General Conditions of Contract, as per Clauses 64(3)(a)(ii) and 64(3)(b), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers [Clause 64(3)(a)(ii)] and three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers [Clause 64(3)(b)]. When the agreement specifically provides for appointment of Arbitral Tribunal consisting of three arbitrators from out of the panel serving or retired Railway Officers, the appointment of the arbitrators should be in terms of the agreement as agreed by the parties. That being the conditions in the agreement between the parties and the General Conditions of the Contract, the High Court was not justified in appointing an independent sole arbitrator ignoring Clauses 64(3)(a)(ii) and 64(3) (b) of the General Conditions of Contract and the impugned orders cannot be sustained. | 1 | 8,618 | 2,474 | ### Instruction:
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party in appointing an arbitrator would get counter-balanced by equal power with the other party. In para (21), it was held as under:- 21. ….The next sentences in the paragraph, further show that cases where both the parties could nominate respective arbitrators of their choice were found to be completely a different situation. The reason is clear that whatever advantage a party may derive by nominating an arbitrator of its choice would get counter balanced by equal power with the other party….. 35. As discussed earlier, after Arbitration and Conciliation (Amendment) Act, 2015, the Railway Board vide notification dated 16.11.2016 has amended and notified Clause 64 of the General Conditions of Contract. As per Clause 64(3)(a)(ii) [where applicability of Section 12(5) of the Act has been waived off], in a case not covered by Clause 64(3)(a)(i), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers not below the rank of Junior Administrative Grade or two Railway Gazetted Officers not below the rank of Junior Administrative Grade and a retired Railway Officer retired not below the rank of Senior Administrative Grade Officer, as the arbitrators. For this purpose, the General Manager, Railway will send a panel of at least four names of Gazetted Railway Officers of one or more departments of the Railway within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest to General Manager at least two names out of the panel for appointment as contractors nominees within thirty days from the date of dispatch of the request from the Railway. The General Manager shall appoint at least one out of them as the contractors nominee and will also simultaneously appoint balance number of arbitrators from the panel or from outside the panel duly indicating the Presiding Officer from amongst the three arbitrators so appointed. The General Manager shall complete the exercise of appointing the Arbitral Tribunal within thirty days from the date of the receipt of the names of contractors nominees. 36. Clause 64(3)(b) of GCC deals with appointment of arbitrator where applicability of Section 12(5) of the Act has not been waived off. In terms of Clause 64(3)(b) of GCC, the Arbitral Tribunal shall consist of a panel of three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers as the arbitrators. For this purpose, the Railway will send a panel of at least four names of retired Railway Officers empanelled to work as arbitrators indicating their retirement date to the contractor within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest the General Manger at least two names out of the panel for appointment of contractors nominees within thirty days from the date of dispatch of the request of the Railway. The General Manager shall appoint at least one out of them as the contractors nominee and will simultaneously appoint the remaining arbitrators from the panel or from outside the panel, duly indicating the Presiding Officer from amongst the three arbitrators. The exercise of appointing Arbitral Tribunal shall be completed within thirty days from the receipt of names of contractors nominees. Thus, the right of the General Manager in formation of Arbitral Tribunal is counterbalanced by respondents power to choose any two from out of the four names and the General Manager shall appoint at least one out of them as the contractors nominee 37. In the present matter, after the respondent had sent the letter dated 27.07.2018 calling upon the appellant to constitute Arbitral Tribunal, the appellant sent the communication dated 24.09.2018 nominating the panel of serving officers of Junior Administrative Grade to act as arbitrators and asked the respondent to select any two from the list and communicate to the office of the General Manager. By the letter dated 26.09.2018, the respondent conveyed their disagreement in waiving the applicability of Section 12(5) of the Amendment Act, 2015. In response to the respondents letter dated 26.09.2018, the appellant has sent a panel of four retired Railway Officers to act as arbitrators giving the details of those retired officers and requesting the respondent to select any two from the list and communicate to the office of the General Manager. Since the respondent has been given the power to select two names from out of the four names of the panel, the power of the appellant nominating its arbitrator gets counter-balanced by the power of choice given to the respondent. Thus, the power of the General Manager to nominate the arbitrator is counter-balanced by the power of the respondent to select any of the two nominees from out of the four names suggested from the panel of the retired officers. In view of the modified Clauses 64(3)(a)(ii) and 64(3)(b) of GCC, it cannot therefore be said that the General Manager has become ineligible to act as the arbitrator. We do not find any merit in the contrary contention of the respondent. The decision in TRF Limited is not applicable to the present case. 38. There is an express provision in the modified clauses of General Conditions of Contract, as per Clauses 64(3)(a)(ii) and 64(3)(b), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers [Clause 64(3)(a)(ii)] and three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers [Clause 64(3)(b)]. When the agreement specifically provides for appointment of Arbitral Tribunal consisting of three arbitrators from out of the panel serving or retired Railway Officers, the appointment of the arbitrators should be in terms of the agreement as agreed by the parties. That being the conditions in the agreement between the parties and the General Conditions of the Contract, the High Court was not justified in appointing an independent sole arbitrator ignoring Clauses 64(3)(a)(ii) and 64(3) (b) of the General Conditions of Contract and the impugned orders cannot be sustained.
### Response:
1
### Explanation:
When the respondent has not sent any reply to the communication dated 25.10.2018, the respondent is not justified in contending that the appointment of Arbitral Tribunal has not been made before filing of the application under Section 11 of the Act and that the right of the appellant to constitute Arbitral Tribunal is extinguished on filing of the application under Section 11(6) of the ActRE: Contention:- General Manager himself becoming ineligible by operation of law to be appointed as arbitrator, is not eligible to nominate the arbitrator35. As discussed earlier, after Arbitration and Conciliation (Amendment) Act, 2015, the Railway Board vide notification dated 16.11.2016 has amended and notified Clause 64 of the General Conditions of Contract. As per Clause 64(3)(a)(ii) [where applicability of Section 12(5) of the Act has been waived off], in a case not covered by Clause 64(3)(a)(i), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers not below the rank of Junior Administrative Grade or two Railway Gazetted Officers not below the rank of Junior Administrative Grade and a retired Railway Officer retired not below the rank of Senior Administrative Grade Officer, as the arbitrators. For this purpose, the General Manager, Railway will send a panel of at least four names of Gazetted Railway Officers of one or more departments of the Railway within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest to General Manager at least two names out of the panel for appointment as contractors nominees within thirty days from the date of dispatch of the request from the Railway. The General Manager shall appoint at least one out ofthem as the contractors nominee and will also simultaneously appoint balance number of arbitrators from the panel or from outside the panel duly indicating the Presiding Officer from amongst the three arbitrators so appointed. The General Manager shall complete the exercise of appointing the Arbitral Tribunal within thirty days from the date of the receipt of the names of contractors nominees36. Clause 64(3)(b) of GCC deals with appointment of arbitrator where applicability of Section 12(5) of the Act has not been waived off. In terms of Clause 64(3)(b) of GCC, the Arbitral Tribunal shall consist of a panel of three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers as the arbitrators. For this purpose, the Railway will send a panel of at least four names of retired Railway Officers empanelled to work as arbitrators indicating their retirement date to the contractor within sixty days from the date when a written and valid demand for arbitration is received by the General Manager. The contractor will be asked to suggest the General Manger at least two names out of the panel for appointment of contractors nominees within thirty days from the date of dispatch of the request of the Railway. The General Manager shall appoint at least one out of them as the contractors nominee and will simultaneously appoint the remaining arbitrators from the panel or from outside the panel, duly indicating the Presiding Officer from amongst the three arbitrators. The exercise of appointing Arbitral Tribunal shall be completed within thirty days from the receipt of names of contractors nominees. Thus, the right of the General Manager in formation of Arbitral Tribunal is counterbalanced by respondents power to choose any two from out of the four names and the General Manager shall appoint at least one out of them as the contractors nominee37. In the present matter, after the respondent had sent the letter dated 27.07.2018 calling upon the appellant to constitute Arbitral Tribunal, the appellant sent the communication dated 24.09.2018 nominating the panel of serving officers of Junior Administrative Grade to act as arbitrators and asked the respondent to select any two from the list and communicate to the office of the General Manager. By the letter dated 26.09.2018, the respondent conveyed their disagreement in waiving the applicability of Section 12(5) of the Amendment Act, 2015. In response to the respondents letter dated 26.09.2018, the appellant has sent a panel of four retired Railway Officers to act as arbitrators giving the details of those retired officers and requesting the respondent to select any two from the list and communicate to the office of the General Manager. Since the respondent has been given the power to select two names from out of the four names of the panel, the power of the appellant nominating its arbitrator gets counter-balanced by the power of choice given to the respondent. Thus, the power of the General Manager to nominate the arbitrator is counter-balanced by the power of the respondent to select any of the two nominees from out of the four names suggested from the panel of the retired officers. In view of the modified Clauses 64(3)(a)(ii) and 64(3)(b) of GCC, it cannot therefore be said that the General Manager has become ineligible to act as the arbitrator. We do not find any merit in the contrary contention of the respondent. The decision in TRF Limited is not applicable to the present case38. There is an express provision in the modified clauses of General Conditions of Contract, as per Clauses 64(3)(a)(ii) and 64(3)(b), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers [Clause 64(3)(a)(ii)] and three retired Railway Officers retired not below the rank of Senior Administrative Grade Officers [Clause 64(3)(b)]. When the agreement specifically provides for appointment of Arbitral Tribunal consisting of three arbitrators from out of the panel serving or retired Railway Officers, the appointment of the arbitrators should be in terms of the agreement as agreed by the parties. That being the conditions in the agreement between the parties and the General Conditions of the Contract, the High Court was not justified in appointing an independent sole arbitrator ignoring Clauses 64(3)(a)(ii) and 64(3) (b) of the General Conditions of Contract and the impugned orders cannot be sustained.
|
State Of M.P Vs. Ramesh | so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage had to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private-defence can legitimately be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact. 15. The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. (See Vidhya Singh vs. State of M.P. (AIR 1971 SC 1857 ). Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this Court, to adopt tests by detached objectivity which would be so natural in a Court room, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances. 16. In the illuminating words of Russel (Russel) on Crime, 11th Edition Volume I at page 49) "... a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases, he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended and if in a conflict between them he happens to kill his attacker, such killing is justifiable." 17. The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right or defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.18. We find that the High Court has acted on surmises and conjectures to conclude certain aspects. Firstly, it has come to conclude that the boys including the deceased attacked Ramesh "may be with fists, may be with some blunt weapon". There was no evidence in this regard. It was further held that there was no reason for Ram Kirpal and his family members to pelt stones. The deceased and his friends attacked Ram Kirpal though weapon used by them are not known. Reference was made to the injuries on Ram Kirpal. it was further held that probably some heat was generated either because of the advise of Ram Kirpal was not accepted or because request of the boys to issue certificate was not accepted by him. Because of the heat generated between the boys and Ram Kirpal, the boys started hitting Ram Kripal causing injuried. In this condition "probably" he asked his sons to shoot the assailants and Ramesh fired a gun shot resulting in fatal injury to deceased and grievous injury to Krishna. It was further held that when there was some exchange of hot words between the deceased and his friends, on one hand and Ram Kishan on the other the boys started attacking on his father and this was grave and sudden provocation to the sons. In the aforesaid background it was held that when Ram Kirpal asked his sons to kill. Exception I to Section 300 would be attracted. The conclusions are not based on evidence and are based on surmises, conjectures and guess work. As aforesaid noted, it was first concluded that right of private defence was exceeded. It was further held that the case is covered by either Exception I or Exception II to Section 300, as injuries on the accused not explained. The findings are vague, unclear and indefensible. As noted above, for some conclusions the High Court acted without any evidence and frequently used the expression `Probably. A new case which was not even pleaded by the parties was introduced on its own by the High Court. Undue importance was attached to some superficial injuries of very minor nature on Ram Kirpal. It is trite that there are some minor or superficial injuries suffered by the accused that shall not affect a credible and cogent prosecution version even if the prosecution has not explained the injuries. The vaccilating nature of the conclusions is apparent because the High Court was not very sure as to whether Exception I or Exception II to Section 300 I.P.C. applied. They operate in entirely different fields. One relates to grave and sudden provocation and the other to exercise of right of private defence.19. The High Court was not justified, therefore, to alter the conviction to Section 304 Part I IPC. The trial Court had rightly convicted the accused in terms of Section 302 IPC. | 1[ds]It is not necessary for the accused to plead in so many words that he acted inIf the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short the Evidence Act), the burden of proof is on the accused, who sets up the plea ofand, in the absence of proof, it is not possible for the Court to presume the truth of the plea ofThe Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea ofis on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right or defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.18. We find that the High Court has acted on surmises and conjectures to conclude certain aspects. Firstly, it has come to conclude that the boys including the deceased attacked Ramesh "may be with fists, may be with some blunt weapon". There was no evidence in this regard. It was further held that there was no reason for Ram Kirpal and his family members to pelt stones. The deceased and his friends attacked Ram Kirpal though weapon used by them are not known. Reference was made to the injuries on Ram Kirpal. it was further held that probably some heat was generated either because of the advise of Ram Kirpal was not accepted or because request of the boys to issue certificate was not accepted by him. Because of the heat generated between the boys and Ram Kirpal, the boys started hitting Ram Kripal causing injuried. In this condition "probably" he asked his sons to shoot the assailants and Ramesh fired a gun shot resulting in fatal injury to deceased and grievous injury to Krishna. It was further held that when there was some exchange of hot words between the deceased and his friends, on one hand and Ram Kishan on the other the boys started attacking on his father and this was grave and sudden provocation to the sons. In the aforesaid background it was held that when Ram Kirpal asked his sons to kill. Exception I to Section 300 would be attracted. The conclusions are not based on evidence and are based on surmises, conjectures and guess work. As aforesaid noted, it was first concluded that right of private defence was exceeded. It was further held that the case is covered by either Exception I or Exception II to Section 300, as injuries on the accused not explained. The findings are vague, unclear and indefensible. As noted above, for some conclusions the High Court acted without any evidence and frequently used the expression `Probably. A new case which was not even pleaded by the parties was introduced on its own by the High Court. Undue importance was attached to some superficial injuries of very minor nature on Ram Kirpal. It is trite that there are some minor or superficial injuries suffered by the accused that shall not affect a credible and cogent prosecution version even if the prosecution has not explained the injuries. The vaccilating nature of the conclusions is apparent because the High Court was not very sure as to whether Exception I or Exception II to Section 300 I.P.C. applied. They operate in entirely different fields. One relates to grave and sudden provocation and the other to exercise of right of private defence.19. The High Court was not justified, therefore, to alter the conviction to Section 304 Part I IPC. The trial Court had rightly convicted the accused in terms of Section 302 IPC. | 1 | 4,015 | 971 | ### 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:
so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage had to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private-defence can legitimately be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact. 15. The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. (See Vidhya Singh vs. State of M.P. (AIR 1971 SC 1857 ). Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this Court, to adopt tests by detached objectivity which would be so natural in a Court room, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances. 16. In the illuminating words of Russel (Russel) on Crime, 11th Edition Volume I at page 49) "... a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases, he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended and if in a conflict between them he happens to kill his attacker, such killing is justifiable." 17. The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right or defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.18. We find that the High Court has acted on surmises and conjectures to conclude certain aspects. Firstly, it has come to conclude that the boys including the deceased attacked Ramesh "may be with fists, may be with some blunt weapon". There was no evidence in this regard. It was further held that there was no reason for Ram Kirpal and his family members to pelt stones. The deceased and his friends attacked Ram Kirpal though weapon used by them are not known. Reference was made to the injuries on Ram Kirpal. it was further held that probably some heat was generated either because of the advise of Ram Kirpal was not accepted or because request of the boys to issue certificate was not accepted by him. Because of the heat generated between the boys and Ram Kirpal, the boys started hitting Ram Kripal causing injuried. In this condition "probably" he asked his sons to shoot the assailants and Ramesh fired a gun shot resulting in fatal injury to deceased and grievous injury to Krishna. It was further held that when there was some exchange of hot words between the deceased and his friends, on one hand and Ram Kishan on the other the boys started attacking on his father and this was grave and sudden provocation to the sons. In the aforesaid background it was held that when Ram Kirpal asked his sons to kill. Exception I to Section 300 would be attracted. The conclusions are not based on evidence and are based on surmises, conjectures and guess work. As aforesaid noted, it was first concluded that right of private defence was exceeded. It was further held that the case is covered by either Exception I or Exception II to Section 300, as injuries on the accused not explained. The findings are vague, unclear and indefensible. As noted above, for some conclusions the High Court acted without any evidence and frequently used the expression `Probably. A new case which was not even pleaded by the parties was introduced on its own by the High Court. Undue importance was attached to some superficial injuries of very minor nature on Ram Kirpal. It is trite that there are some minor or superficial injuries suffered by the accused that shall not affect a credible and cogent prosecution version even if the prosecution has not explained the injuries. The vaccilating nature of the conclusions is apparent because the High Court was not very sure as to whether Exception I or Exception II to Section 300 I.P.C. applied. They operate in entirely different fields. One relates to grave and sudden provocation and the other to exercise of right of private defence.19. The High Court was not justified, therefore, to alter the conviction to Section 304 Part I IPC. The trial Court had rightly convicted the accused in terms of Section 302 IPC.
### Response:
1
### Explanation:
It is not necessary for the accused to plead in so many words that he acted inIf the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short the Evidence Act), the burden of proof is on the accused, who sets up the plea ofand, in the absence of proof, it is not possible for the Court to presume the truth of the plea ofThe Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea ofis on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right or defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.18. We find that the High Court has acted on surmises and conjectures to conclude certain aspects. Firstly, it has come to conclude that the boys including the deceased attacked Ramesh "may be with fists, may be with some blunt weapon". There was no evidence in this regard. It was further held that there was no reason for Ram Kirpal and his family members to pelt stones. The deceased and his friends attacked Ram Kirpal though weapon used by them are not known. Reference was made to the injuries on Ram Kirpal. it was further held that probably some heat was generated either because of the advise of Ram Kirpal was not accepted or because request of the boys to issue certificate was not accepted by him. Because of the heat generated between the boys and Ram Kirpal, the boys started hitting Ram Kripal causing injuried. In this condition "probably" he asked his sons to shoot the assailants and Ramesh fired a gun shot resulting in fatal injury to deceased and grievous injury to Krishna. It was further held that when there was some exchange of hot words between the deceased and his friends, on one hand and Ram Kishan on the other the boys started attacking on his father and this was grave and sudden provocation to the sons. In the aforesaid background it was held that when Ram Kirpal asked his sons to kill. Exception I to Section 300 would be attracted. The conclusions are not based on evidence and are based on surmises, conjectures and guess work. As aforesaid noted, it was first concluded that right of private defence was exceeded. It was further held that the case is covered by either Exception I or Exception II to Section 300, as injuries on the accused not explained. The findings are vague, unclear and indefensible. As noted above, for some conclusions the High Court acted without any evidence and frequently used the expression `Probably. A new case which was not even pleaded by the parties was introduced on its own by the High Court. Undue importance was attached to some superficial injuries of very minor nature on Ram Kirpal. It is trite that there are some minor or superficial injuries suffered by the accused that shall not affect a credible and cogent prosecution version even if the prosecution has not explained the injuries. The vaccilating nature of the conclusions is apparent because the High Court was not very sure as to whether Exception I or Exception II to Section 300 I.P.C. applied. They operate in entirely different fields. One relates to grave and sudden provocation and the other to exercise of right of private defence.19. The High Court was not justified, therefore, to alter the conviction to Section 304 Part I IPC. The trial Court had rightly convicted the accused in terms of Section 302 IPC.
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Raj Kumar Vs. Union Of India | of the appellant, and also quashing the order dated March 29, 1965 issued by the State of Rajasthan. The High Court rejected the petition holding that the resignation became effective on the date on which it was accepted by the Government of India, and a subsequent withdrawal of the resignation was ineffective, even if acceptance of the resignation was not intimated to the appellant.3. In this appeal, with certificate granted by the High Court, counsel for the appellant contends that the appellant could, so long as acceptance of the resignation was not communicated to him, withdraw the resignation submitted by him. Counsel invited our attention to a circular memorandum issued on May 6, 1958, under the signature of the Deputy Secretary to the Government of India, Ministry of Home Affairs, setting out the procedure to be followed in dealing with resignation from service. Clauses (c) and (d) of the circular stated:(c) "The competent authority should decide the date with effect from which the resignation should become effective.In cases covered by (b) (i) above, the date would be that with effect from which alternative arrangements can be made for filling the post. Where an officer is on leave, the competent authority should decide whether he will accept the resignation with immediate effect or with effect from the date following the termination of the leave. Where a period of notice is prescribed which a Government servant should give when he wishes to resign from service, the competent authority may decide to count the period of leave towards the notice period. In other cases also it is open to the competent authority to decide whether the resignation should become effective immediately or with effect from some prospective date. * * * * * * * *."(d) "A resignation becomes effective when it is accepted and the officer is relieved of his duties. Where a resignation has not become effective and the officer wishes to withdraw it, it is open to the authority which accepted the resignation either to permit the officer to withdraw the resignation or to refuse the request for such withdrawal. Where, however, a resignation has become effective, the officer is no longer in Government service and acceptance of the request for withdrawal of resignation would amount to re-employing him in service after condoning the period of break. * * * * * *"Counsel says that under the instructions issue by the Government of India resignation of an officer from service becomes effective after it is accepted and the officer is relieved of his duties and not till then. But the circular letter has no statutory force. It is not a rule made under Art. 309 of the Constitution. It contains merely instructions set out by the Ministry of Home Affairs about the procedure to be followed in respect of resignation from service. Our attention has not been invited to any statutory rule or regulation relating to resignation by members of the Indian Administrative Service, especially as to the date on which the resignation becomes effective.4. The letters written by the appellant on August 21, 1964, and August 30, 1964, did not indicate that the resignation was not to become effective until acceptance thereof was intimated to the appellant. The appellant informed the authorities of the State of Rajasthan that his resignation may be forwarded for early acceptance.On the plain terms of the letters, the resignation was to become effective as soon as it was accepted by the appointing authority. No rule has been framed under Art. 309 of the Constitution which enacts that for an order accepting the resignation to be effective, it must be communicated to the person submitting his resignation.5. Our attention was invited to a judgment of this Court in State of Punjab v. Amar Singh Harika, AIR 1968 SC 1313 in which it was held that an order of dismissal passed by an authority and kept on its file without communicating it to the officer concerned or otherwise publishing it did not take effect as from the date on which the order was actually written out by the said authority; such an order could only be effective after it was communicated to the officer concerned or was otherwise published.The principle of that case has no application here. Termination of employment by order passed by the Government does not become effective until the order is intimated to the employee. But where a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus paenitentiae but not thereafter.Undue delay in intimating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation has not been accepted. In the present case the resignation was accepted within a short time after it was received by the Government of India. Apparently the State of Rajasthan did not, immediately implement the order, and relieve the appellant of his duties, but the appellant cannot profit by the delay in intimating acceptance or in relieving him of his duties.6. The alternative ground raised by counsel that acceptance of the resignation amounts to dismissal from employment and failure to comply with the requirements of Article 311 of the Constitution vitiates the order accepting the resignation has no form.The order complained of did not purport to be one of dismissal: the Government of India accepted the resignation submitted by the appellant, they did not purport to terminate the appointment for any misconduct on the part of the appellant or as a measure of penalty. | 0[ds]3. In this appeal, with certificate granted by the High Court, counsel for the appellant contends that the appellant could, so long as acceptance of the resignation was not communicated to him, withdraw the resignation submitted by him. Counsel invited our attention to a circular memorandum issued on May 6, 1958, under the signature of the Deputy Secretary to the Government of India, Ministry of Home Affairs, setting out the procedure to be followed in dealing with resignation from service.The letters written by the appellant on August 21, 1964, and August 30, 1964, did not indicate that the resignation was not to become effective until acceptance thereof was intimated to the appellant. The appellant informed the authorities of the State of Rajasthan that his resignation may be forwarded for early acceptance.On the plain terms of the letters, the resignation was to become effective as soon as it was accepted by the appointing authority. No rule has been framed under Art. 309 of the Constitution which enacts that for an order accepting the resignation to be effective, it must be communicated to the person submitting his resignation.e alternative ground raised by counsel that acceptance of the resignation amounts to dismissal from employment and failure to comply with the requirements of Article 311 of the Constitution vitiates the order accepting the resignation has noorder complained of did not purport to be one of dismissal: the Government of India accepted the resignation submitted by the appellant, they did not purport to terminate the appointment for any misconduct on the part of the appellant or as a measure of penalty. | 0 | 1,462 | 292 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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of the appellant, and also quashing the order dated March 29, 1965 issued by the State of Rajasthan. The High Court rejected the petition holding that the resignation became effective on the date on which it was accepted by the Government of India, and a subsequent withdrawal of the resignation was ineffective, even if acceptance of the resignation was not intimated to the appellant.3. In this appeal, with certificate granted by the High Court, counsel for the appellant contends that the appellant could, so long as acceptance of the resignation was not communicated to him, withdraw the resignation submitted by him. Counsel invited our attention to a circular memorandum issued on May 6, 1958, under the signature of the Deputy Secretary to the Government of India, Ministry of Home Affairs, setting out the procedure to be followed in dealing with resignation from service. Clauses (c) and (d) of the circular stated:(c) "The competent authority should decide the date with effect from which the resignation should become effective.In cases covered by (b) (i) above, the date would be that with effect from which alternative arrangements can be made for filling the post. Where an officer is on leave, the competent authority should decide whether he will accept the resignation with immediate effect or with effect from the date following the termination of the leave. Where a period of notice is prescribed which a Government servant should give when he wishes to resign from service, the competent authority may decide to count the period of leave towards the notice period. In other cases also it is open to the competent authority to decide whether the resignation should become effective immediately or with effect from some prospective date. * * * * * * * *."(d) "A resignation becomes effective when it is accepted and the officer is relieved of his duties. Where a resignation has not become effective and the officer wishes to withdraw it, it is open to the authority which accepted the resignation either to permit the officer to withdraw the resignation or to refuse the request for such withdrawal. Where, however, a resignation has become effective, the officer is no longer in Government service and acceptance of the request for withdrawal of resignation would amount to re-employing him in service after condoning the period of break. * * * * * *"Counsel says that under the instructions issue by the Government of India resignation of an officer from service becomes effective after it is accepted and the officer is relieved of his duties and not till then. But the circular letter has no statutory force. It is not a rule made under Art. 309 of the Constitution. It contains merely instructions set out by the Ministry of Home Affairs about the procedure to be followed in respect of resignation from service. Our attention has not been invited to any statutory rule or regulation relating to resignation by members of the Indian Administrative Service, especially as to the date on which the resignation becomes effective.4. The letters written by the appellant on August 21, 1964, and August 30, 1964, did not indicate that the resignation was not to become effective until acceptance thereof was intimated to the appellant. The appellant informed the authorities of the State of Rajasthan that his resignation may be forwarded for early acceptance.On the plain terms of the letters, the resignation was to become effective as soon as it was accepted by the appointing authority. No rule has been framed under Art. 309 of the Constitution which enacts that for an order accepting the resignation to be effective, it must be communicated to the person submitting his resignation.5. Our attention was invited to a judgment of this Court in State of Punjab v. Amar Singh Harika, AIR 1968 SC 1313 in which it was held that an order of dismissal passed by an authority and kept on its file without communicating it to the officer concerned or otherwise publishing it did not take effect as from the date on which the order was actually written out by the said authority; such an order could only be effective after it was communicated to the officer concerned or was otherwise published.The principle of that case has no application here. Termination of employment by order passed by the Government does not become effective until the order is intimated to the employee. But where a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus paenitentiae but not thereafter.Undue delay in intimating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation has not been accepted. In the present case the resignation was accepted within a short time after it was received by the Government of India. Apparently the State of Rajasthan did not, immediately implement the order, and relieve the appellant of his duties, but the appellant cannot profit by the delay in intimating acceptance or in relieving him of his duties.6. The alternative ground raised by counsel that acceptance of the resignation amounts to dismissal from employment and failure to comply with the requirements of Article 311 of the Constitution vitiates the order accepting the resignation has no form.The order complained of did not purport to be one of dismissal: the Government of India accepted the resignation submitted by the appellant, they did not purport to terminate the appointment for any misconduct on the part of the appellant or as a measure of penalty.
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3. In this appeal, with certificate granted by the High Court, counsel for the appellant contends that the appellant could, so long as acceptance of the resignation was not communicated to him, withdraw the resignation submitted by him. Counsel invited our attention to a circular memorandum issued on May 6, 1958, under the signature of the Deputy Secretary to the Government of India, Ministry of Home Affairs, setting out the procedure to be followed in dealing with resignation from service.The letters written by the appellant on August 21, 1964, and August 30, 1964, did not indicate that the resignation was not to become effective until acceptance thereof was intimated to the appellant. The appellant informed the authorities of the State of Rajasthan that his resignation may be forwarded for early acceptance.On the plain terms of the letters, the resignation was to become effective as soon as it was accepted by the appointing authority. No rule has been framed under Art. 309 of the Constitution which enacts that for an order accepting the resignation to be effective, it must be communicated to the person submitting his resignation.e alternative ground raised by counsel that acceptance of the resignation amounts to dismissal from employment and failure to comply with the requirements of Article 311 of the Constitution vitiates the order accepting the resignation has noorder complained of did not purport to be one of dismissal: the Government of India accepted the resignation submitted by the appellant, they did not purport to terminate the appointment for any misconduct on the part of the appellant or as a measure of penalty.
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Krishna Kumar Birla Vs. Rajendra Singh Lodha | MPB did not become an executor. He, therefore, was not a trustee. Provisions of Section 73 of the Indian Trusts Act will, therefore, have no application. In the Will of PDB executed in the year 1982 he was merely named as an executor. It is also difficult, at this stage, to construe the Will of 1982 of PDB as an instrument of trust. The question in regard to the administration of the estate of PDB only arose after her death which took place in 2004. MPB died in 1990. The said provisions, therefore, have no application. PREJUDICE ARGUMENTS 176. Submission that RSL is an outsider and the bequest is un-natural does not appeal to us. Such a question cannot be determined at this stage. Why an owner of the property executes a Will in favour of another is a matter of his/her choice. One may by a Will deprive his close family members including his sons and daughters. She had a right to do so. The court is concerned with the genuineness of the Will. If it is found to be valid, no further question as to why did she do so would be completely out of its domain. A Will may be executed even for the benefit of others including animals. Various documents have been placed before us by the learned counsel appearing on behalf of the first respondent to show that MPB was not happy in regard to management of Birlas Group of Companies and by the division thereof which took place after the demise of G.D. Birla in 1983.177. Indisputably, however, they were separate. They were in the control and management of their respective companies. The group of companies managed by MPB and PDB were known as M.P. Birla Group of Companies. There are other companies, named separately, in the name of individual group of Birlas. 178. According to the first respondent he had closely been involved in the M.P. Birla Group of Companies and had been inducted as Director/Co-Chairman/Chairman of various M.P. Birla Group of Companies during the lifetime of PDB. Other persons belonging to Birla family were not so involved. In fact according to the appellants themselves, the first respondent was a man of trust so far PDB is concerned as it was stated: - "(f) The Petitioner through Lodha & Co. and/or other firms under his control, ostensibly or otherwise, came to be appointed as statutory auditors and/or to be otherwise involved in matters concerning the finance and accounts of several companies and organizations where the Birla family has substantial stakes in management and/or shareholding. By reason of the same, the petitioner came to enjoy the trust and confidence of most of the members of the Birla family.(g) After the death of late Madhav Prasad Birla in or about July, 1990 the deceased who has had no formal education relied and continued to rely on the petitioner and reposed and continued to repose complete trust and confidence in the petitioner in the matters pertaining to all her financial affairs by reason whereof, the petitioner was at all material times, privy to all information concerning the personal and financial affairs of the deceased. The deceased also sought and obtained advice from the petitioner with regard to her assets, savings and investments and with regard to and in the management and affairs of several companies and institutions where the deceased had a stake in the shareholding and/or management and the deceased was at all material times accustomed to act as per the wishes and dictates of the petitioner. The petitioner is and was at all material times aware of the same.(h) By reason of the aforesaid, the petitioner was, at all material times, in a fiduciary relationship with the deceased." 179. The said arguments, therefore, do not appeal to us to determine the issues in favour of Birlas. We wish that these contentions were not raised before us. APPEAL ARISING OUT OF SLP (C) NO. 19047 OF 2007 180. Whether RSL has a cavetable interest in the proceeding in respect of the probate of the Will of MPB dated 13th July, 1982 is also in question in this appeal. 181. We have already held that GPB has caveatable interests as executor of MPB in respect of his Will of 1982. We, therefore, see no reason as to why RSL would not have a caveatable interest being a beneficiary under the 1999 Will in the proceedings for grant of probate of the Will of MPB dated 13th July, 1982. If the grounds taken in the appeal are to be upheld, the same ex facie would destroy the case of the appellants in the other cases. SUIT ON MUTUAL WILLS 182. We have noticed hereinbefore the averments made in the plaint of Civil Suit No.221 of 2004. Filing of the said suit, in our opinion, does not bar considering the caveatable interest and as we have not been called upon to decide the maintainability of the said suit at this stage, we do not make any observation thereupon. We have noticed the averments made in the plaint at some length only for the purpose of arriving at a finding on the question as to whether the plaintiffs therein have acquired any caveatable interest by reason thereof or not.183. In our opinion, the High Court was right in opining that a caveatable interest may arise only after suit for enforcement of mutual Will is decreed and not prior thereto. EPILOGUE 184. Before parting with this case we may notice some disturbing features. Each party for good or bad reasons has been opposing one or the other application filed by the other. It is stated that respondent No.1 is opposing the application for substitution of heirs and legal representatives of Mrs. Laxmi Devi Newar, sister of MPB. We do not know on what premise such a stand is being taken. Counsel for both the parties put the blame on the other side for causing delay in disposal of the matters. | 1[ds]76. Such a suit, however, in our opinion must have a direct nexus with the estate of the testator and not to enforce a right in respect of the application of the estate of the testator under another will. Right to maintain a suit must be independent of the wills sought to be probated. No legal right accrues under an unprobated Will except in case where taking of probate is not mandatory.The propositions of law which in our considered view may be applied in a case of this natureTo sustain a caveat, a caveatable interest must be shown;(ii) The test required to be applied is: does the claim of grant of probate prejudice his right because it defeats some other line of succession in terms whereof the caveator asserted his right.(iii) It is a fundamental nature of a probate proceeding that whatever would be the interest of the testator, the same must be accepted and the rules laid down therein must be followed. The logical corollary whereof would be that any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by Will on ground outside the law of succession would be a stranger to the probate proceeding inasmuch as none of such rights can effectively be adjudicatedfrom that fact, the said decision, in our opinion, did not lay down the correct law, even the principles enunciated will have no application in this case as the heirs of Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta would succeed to their interest in the property and not the appellants, as classified heirs succeed absolutely and upon death of any such heir, the estate devolves upon the heirs of such absolute successor. There could not, therefore, be any question of reversion of the property. 102. We are not oblivious of the fact that a judgment rendered in a probate proceeding is a judgment in rem. But, its application is limited. A judgment rendered in a probate proceeding would not be determinative of the question of title. If a probate has been obtained by fraud or suppression of material fact, the same can be the subject matter of revocation of the grant in terms of Section 263 of the 1925 Act.The decisions which were rendered prior to coming into force of the Hindu Succession Act, thus, may not be of much relevance. Now, if on the interpretation of law, as then stood, a reversioner or a distant relative who could have succeeded to the interest of the testator was entitled to file a caveat, they would not be now, as the law of inheritance and succession is governed by a Parliamentary Act.107. Directly or indirectly the appellants and in particular KKB is questioning the title or disposing power of the testator, which is impermissible in a probate proceeding. Appellants, in fact, have been prevaricating their stand from proceeding to proceeding. They have been raising various contentions which are wholly impermissible inanswer thereto, in our opinion, must be rendered in the negative. If anybody and everybody including a busy body or an interloper is found to be entitled to enter a caveat and oppose, grant of a probate, then Sections 283(1)(c) and 284 of the 1925 Act would have been differently worded. Such an interpretation would lead to an anomalous situation. It is, therefore, not possible for us to accede to the submission of the learned counsel that caveatable interest should be construed very widely.110. A caveatable interest is not synonymous with the word contention. A contention can be raised only by a person who has a caveatable interest. The dictionary meaning of contention, therefore, in the aforementioned context cannot have any application in a proceeding under the 1925 Act.111. While interpreting the provisions of a statute, we must also bear in mind the admitted legal position that a probate proceeding should not be permitted to be converted into a title suit. It should not be permitted to become an unchartered field to be trespassed into by persons even if he is not affected by testamentary disposition.The Rules framed by the Calcutta High Court provide for determination of the issue of caveatable interest as a preliminary issue. We do not see any reason as to why the High Court, in exercise of its powers conferred upon it under Section 122 of the Code of Civil Procedure, could not frame such Rules. After coming into force of the Constitution such Rules can also be framed by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. If the contention of Mr. Jethmalani is to be accepted that there being no such provision in the Act for determination of such an issue as preliminary issue, the High Court should not have framed the Rules, we are of the opinion that in a similar situation this Court also could not direct listing of the writ petitions under Article 32 of the Constitution of India for preliminary hearing in terms of the Supreme Court Rules. The Court having regard to its general power as also the power under Order XIV Rule 1 of the Code of Civil Procedure can decide the matter by framing preliminary issues in regard to the maintainability or otherwise of the application. It is a rule of procedure and not of substance. A court is entitled to dismiss a lis at the threshold if it is found not maintainable. The Court even in absence of any rule must take the precaution of not indulging in wasteful expenditure of its time at the instance of the litigants who have no case at all. We do not, therefore, find any legal infirmity in the Rules.The contention that such a Will was irrevocable was held to be lacking any foundation. The court refused to go into the question as to whether the court having the jurisdiction to decide both the contentions independently should go there into by holding that it being a court of probate and not a court of construction, it could only construe testamentary documents to the extent of determining those testamentary documents that should be admitted for probate.123. What could be done and has not been done by a court of equity does not create a precedent. It does not even have a persuasive value.have examined the said decision. The proposition of law laid down therein was that the Probate Court will first revoke the Will and then determine the rights under mutual Will either in equity or in specific performance. It was held that a Probate Court cannot determine whether the proponent having revoked her own Will is thereby estopped from claiming under the Will executed by the deceased pursuant to a contract between the deceased and proponent.The law laid down in the aforementioned treatises and decisions rendered in different jurisdictions clearly suggests that existence of a mutual Will or filing of a suit, by themselves, are not sufficient to create a caveatable interest. In fact the appellants have disentitled themselves from lodging a caveat as they are questioning the title of the testatrix as also her right to execute a Will as it had been contended that she merely had a life interest and no right of dispossession of property by Will or otherwise. They cannot fall back upon the purported "Mutual Wills" only because they also challenge the genuineness of the 1999 will.129. Mr. Jethmalani, furthermore, relied upon a decision in ReDale (deceased) Proctor v. Dale4 All ER129] which, in our opinion, has no application in this case as it was not a case dealing with "caveatable interest" arising out of "mutual Wills". Strong reliance has also been placed on Dilharshankar C. Bhachech v. Controller of Estate Duty [(1986) 1 SCC 701] wherein again Halsburys Laws of England has been quoted, which we have noticed hereto before. The said decision of this Court, therefore, supports the contention of the first respondent and not that of the appellants.130. It is not much in dispute that probate has to be granted to the latter Will even when made in prejudice of the agreement not to revoke the mutual wills inasmuch as the court of probate is only concerned with the last Will.Will.132. The principles which can be deduced from the discussions made hereto before are:A Will made in prejudice of an agreement will nevertheless be effective as a Will as it is by its very nature and by its very essence a revocable instrument.(ii) A subsequent infringing Will would be valid even if it revokes an earlier Mutual Will.(iii) Similarity of the terms would not be enough to establish the necessary agreement.(iv) Whether a legatee has taken any benefit under the alleged Wills of 1982 would, however, be relevant.The submission, to say the least, is fallacious. The heirs of the deceased have already been impleaded as parties. Inheritance to an estate never remains in abeyance. In the event of death of the sisters of MPB, their heirs and legal representatives would inherit the property in their own right and not as the heirs of MPB. The dispute regarding intestacy does not change the law of succession and inheritance.138. As Agnates KKB, BKB, YB and GPB also claimed caveatable interest as agnates. Entry 2 of Class II of the Schedule appended to the Hindu Succession Act in this case would not bring them into the picture, as agnates will acquire an interest only when there is no heir of either Class I or Class II. When there exists Class II heirs, the appellants would not have any real interest in the property. The property upon the death of Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta would pass on to their legal heirs. Appellants being not the heirs of MPB or PDB have no caveatable interest.The theory of looking after the spiritual well-being of the deceased soul by the near relatives has no application for the purpose of judging the validity or otherwise of a Will; more so, after coming into force of the Hindu Succession Act, 1956 as in terms thereof the concept of succession to the estate of a deceased on the said consideration has lost its relevance. Such a contention, therefore, must be rejected out right, being a wholly misconceived one.140. The doctrine of larger circle of the caveators as being members of the Birla family and to protect the spiritual interest does not convert a non-existent interest into a caveatable interest. Such a question had not been raised even in the affidavits of the appellants. We do not find any force therein.KKB, BKB and GPB claimed caveatable interest as co-owners of 1/5th share in Kumaon Orchards, two other co-owners being PB and S.K. Birla. S.K. Birla does not claim any caveatable interest in the estate of PDB. Even a person claiming an interest in the property of the testator by reason of an agreement for sale would not have a caveatable interest on the premise that such an agreement would be binding both upon the executor as also upon the heirs of the deceased (in the event, probate is not granted). The same principle would apply herein. Right of pre-emption, if any, is not affected by grant of probate. A right of pre-emption would arise only when a voluntary transfer is made for consideration in favour of a stranger and not prior thereto.Right of a co-owner is not affected by testamentary disposition. Indisputably, the object of conferring the right on a co-sharer or owner of an adjacent immovable property is to exclude strangers from acquiring interest in an immovable property as a co-sharer or to keep objectionable strangers away from the neighbourhood. The same by itself, in our considered opinion, does not constitute a caveatable interest.159. If the submission of the learned counsel that the executors had interest even during the life time of MPB is accepted the same would give rise to an absurdity.160. An executor must first become an executor. As MPB predeceased PDB, he never became an executor. If he did not become an executor, the question of filling up of any vacancy would not arise.161. For the aforementioned purpose, we may assume that the 1982 Will was valid. As MPB could never become an executor, BKBs appointment does not confer on him a caveatable interest. An appointment of an executor ordinarily is the function of a court in terms of Section 301 of the 1925 Act. We, however, need not go into the question as to whether his appointment was legal or not. But, we may only notice that even in the deed of appointment, there is nothing to show that the necessary ingredients for appointment of B.K. Birla by the surviving executors had been made out as it was not stated that the original executor had seized to hold office.162. The office of executor under the 1982 Will does not carry any remuneration therewith. The power to appoint an executor was dependent upon any executor ceasing to be one. The condition precedent has not been fulfilled. In the instant case, MPB had never become the executor, hence, the question of his "ceasing to be an executor" does not arise.163. Appellants are not the legatees of the said Will. They are not the beneficiaries thereunder. They being merely executors, in our opinion, would not clothe them with a right to lodge a caveat as by reason thereof they did not derive any caveatable interest in the estate of PDB.So far as the case of YB is concerned, his appointment as an executor has been upheld by the High Court. It was, however, opined that by reason thereof, he did not acquire any caveatable interest. RSL has filed an appeal against that part of the judgment whereby his appointment as an executor of the Will of MPB of 1992 in place of PDB has been upheld.167. For the reasons stated in regard to the legal position governing the filling up of vacancy of one of the named executors by the others, we are of the opinion that the appointment of YB as an executor of the Will of MPB in place of PDB cannot be sustained. It is not a case of YB that PDB had assumed office or the purported Will of MPB had been given effect to. Genuineness of the said Will is in question. KKB has already filed an application for grant of probate in respect of the said Will. As there is nothing to show that any vacancy has been created by reason of death of PDB, YB could not have been appointed in her place at this stage. The vacancy has to be filled up in terms of the instrument or in accordance with law. It cannot be directed to be filled in equity by a Court of Law as was submitted by Mr. Venugopal.168. We are furthermore of the opinion that only because YB has a right to maintain a suit for purported enforcement of the Mutual Wills, the same by itself cannot confer upon him a caveatable interest.169. There exists a distinction between an executor named by the testator in the Will and an executor who is appointed on a purported vacancy arising out of death of another executor. In the latter case such an appointment may not be valid. In a case of this nature YB could not be held to have caveatable interest only by reason of such an appointment as here is nothing on record to show that PDB had enjoyed the benefit under the said Will and not as an heir of MPB. If the Will had not been given effect to for such a long time, there is no reason as to why the terms thereof should be directed to be acted upon at this juncture and/or in terms thereof dispute between the parties in this behalf cannot be adjudicated upon at an interlocutory stage.The affidavit of assets annexed by the Birlas to their petition for grant of probate in respect of 1982 Will of MPD and the affidavit of assets annexed by them to the petition for grant of probate of 1982 Will of PDB show that the assets held by the former mentioned in the petition for probate of his Will of 1982 are also shown as assets of PDB.Prima facie BKB or YB were not appointed as trustee. They were only appointed as executors. An executor becomes a trustee only upon completion of administration of trust. This proposition does not appear to be in dispute. Administration of trust being incomplete, MPB did not become an executor. He, therefore, was not a trustee. Provisions of Section 73 of the Indian Trusts Act will, therefore, have no application. In the Will of PDB executed in the year 1982 he was merely named as an executor. It is also difficult, at this stage, to construe the Will of 1982 of PDB as an instrument of trust. The question in regard to the administration of the estate of PDB only arose after her death which took place in 2004. MPB died in 1990. The said provisions, therefore, have no application.Submission that RSL is an outsider and the bequest is un-natural does not appeal to us. Such a question cannot be determined at this stage. Why an owner of the property executes a Will in favour of another is a matter of his/her choice. One may by a Will deprive his close family members including his sons and daughters. She had a right to do so. The court is concerned with the genuineness of the Will. If it is found to be valid, no further question as to why did she do so would be completely out of its domain. A Will may be executed even for the benefit of others including animals. Various documents have been placed before us by the learned counsel appearing on behalf of the first respondent to show that MPB was not happy in regard to management of Birlas Group of Companies and by the division thereof which took place after the demise of G.D. Birla in 1983.177. Indisputably, however, they were separate. They were in the control and management of their respective companies. The group of companies managed by MPB and PDB were known as M.P. Birla Group of Companies. There are other companies, named separately, in the name of individual group of Birlas.We have already held that GPB has caveatable interests as executor of MPB in respect of his Will of 1982. We, therefore, see no reason as to why RSL would not have a caveatable interest being a beneficiary under the 1999 Will in the proceedings for grant of probate of the Will of MPB dated 13th July, 1982. If the grounds taken in the appeal are to be upheld, the same ex facie would destroy the case of the appellants in the other cases.We have noticed hereinbefore the averments made in the plaint of Civil Suit No.221 of 2004. Filing of the said suit, in our opinion, does not bar considering the caveatable interest and as we have not been called upon to decide the maintainability of the said suit at this stage, we do not make any observation thereupon. We have noticed the averments made in the plaint at some length only for the purpose of arriving at a finding on the question as to whether the plaintiffs therein have acquired any caveatable interest by reason thereof or not.183. In our opinion, the High Court was right in opining that a caveatable interest may arise only after suit for enforcement of mutual Will is decreed and not prior | 1 | 24,003 | 3,582 | ### Instruction:
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MPB did not become an executor. He, therefore, was not a trustee. Provisions of Section 73 of the Indian Trusts Act will, therefore, have no application. In the Will of PDB executed in the year 1982 he was merely named as an executor. It is also difficult, at this stage, to construe the Will of 1982 of PDB as an instrument of trust. The question in regard to the administration of the estate of PDB only arose after her death which took place in 2004. MPB died in 1990. The said provisions, therefore, have no application. PREJUDICE ARGUMENTS 176. Submission that RSL is an outsider and the bequest is un-natural does not appeal to us. Such a question cannot be determined at this stage. Why an owner of the property executes a Will in favour of another is a matter of his/her choice. One may by a Will deprive his close family members including his sons and daughters. She had a right to do so. The court is concerned with the genuineness of the Will. If it is found to be valid, no further question as to why did she do so would be completely out of its domain. A Will may be executed even for the benefit of others including animals. Various documents have been placed before us by the learned counsel appearing on behalf of the first respondent to show that MPB was not happy in regard to management of Birlas Group of Companies and by the division thereof which took place after the demise of G.D. Birla in 1983.177. Indisputably, however, they were separate. They were in the control and management of their respective companies. The group of companies managed by MPB and PDB were known as M.P. Birla Group of Companies. There are other companies, named separately, in the name of individual group of Birlas. 178. According to the first respondent he had closely been involved in the M.P. Birla Group of Companies and had been inducted as Director/Co-Chairman/Chairman of various M.P. Birla Group of Companies during the lifetime of PDB. Other persons belonging to Birla family were not so involved. In fact according to the appellants themselves, the first respondent was a man of trust so far PDB is concerned as it was stated: - "(f) The Petitioner through Lodha & Co. and/or other firms under his control, ostensibly or otherwise, came to be appointed as statutory auditors and/or to be otherwise involved in matters concerning the finance and accounts of several companies and organizations where the Birla family has substantial stakes in management and/or shareholding. By reason of the same, the petitioner came to enjoy the trust and confidence of most of the members of the Birla family.(g) After the death of late Madhav Prasad Birla in or about July, 1990 the deceased who has had no formal education relied and continued to rely on the petitioner and reposed and continued to repose complete trust and confidence in the petitioner in the matters pertaining to all her financial affairs by reason whereof, the petitioner was at all material times, privy to all information concerning the personal and financial affairs of the deceased. The deceased also sought and obtained advice from the petitioner with regard to her assets, savings and investments and with regard to and in the management and affairs of several companies and institutions where the deceased had a stake in the shareholding and/or management and the deceased was at all material times accustomed to act as per the wishes and dictates of the petitioner. The petitioner is and was at all material times aware of the same.(h) By reason of the aforesaid, the petitioner was, at all material times, in a fiduciary relationship with the deceased." 179. The said arguments, therefore, do not appeal to us to determine the issues in favour of Birlas. We wish that these contentions were not raised before us. APPEAL ARISING OUT OF SLP (C) NO. 19047 OF 2007 180. Whether RSL has a cavetable interest in the proceeding in respect of the probate of the Will of MPB dated 13th July, 1982 is also in question in this appeal. 181. We have already held that GPB has caveatable interests as executor of MPB in respect of his Will of 1982. We, therefore, see no reason as to why RSL would not have a caveatable interest being a beneficiary under the 1999 Will in the proceedings for grant of probate of the Will of MPB dated 13th July, 1982. If the grounds taken in the appeal are to be upheld, the same ex facie would destroy the case of the appellants in the other cases. SUIT ON MUTUAL WILLS 182. We have noticed hereinbefore the averments made in the plaint of Civil Suit No.221 of 2004. Filing of the said suit, in our opinion, does not bar considering the caveatable interest and as we have not been called upon to decide the maintainability of the said suit at this stage, we do not make any observation thereupon. We have noticed the averments made in the plaint at some length only for the purpose of arriving at a finding on the question as to whether the plaintiffs therein have acquired any caveatable interest by reason thereof or not.183. In our opinion, the High Court was right in opining that a caveatable interest may arise only after suit for enforcement of mutual Will is decreed and not prior thereto. EPILOGUE 184. Before parting with this case we may notice some disturbing features. Each party for good or bad reasons has been opposing one or the other application filed by the other. It is stated that respondent No.1 is opposing the application for substitution of heirs and legal representatives of Mrs. Laxmi Devi Newar, sister of MPB. We do not know on what premise such a stand is being taken. Counsel for both the parties put the blame on the other side for causing delay in disposal of the matters.
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he did not acquire any caveatable interest. RSL has filed an appeal against that part of the judgment whereby his appointment as an executor of the Will of MPB of 1992 in place of PDB has been upheld.167. For the reasons stated in regard to the legal position governing the filling up of vacancy of one of the named executors by the others, we are of the opinion that the appointment of YB as an executor of the Will of MPB in place of PDB cannot be sustained. It is not a case of YB that PDB had assumed office or the purported Will of MPB had been given effect to. Genuineness of the said Will is in question. KKB has already filed an application for grant of probate in respect of the said Will. As there is nothing to show that any vacancy has been created by reason of death of PDB, YB could not have been appointed in her place at this stage. The vacancy has to be filled up in terms of the instrument or in accordance with law. It cannot be directed to be filled in equity by a Court of Law as was submitted by Mr. Venugopal.168. We are furthermore of the opinion that only because YB has a right to maintain a suit for purported enforcement of the Mutual Wills, the same by itself cannot confer upon him a caveatable interest.169. There exists a distinction between an executor named by the testator in the Will and an executor who is appointed on a purported vacancy arising out of death of another executor. In the latter case such an appointment may not be valid. In a case of this nature YB could not be held to have caveatable interest only by reason of such an appointment as here is nothing on record to show that PDB had enjoyed the benefit under the said Will and not as an heir of MPB. If the Will had not been given effect to for such a long time, there is no reason as to why the terms thereof should be directed to be acted upon at this juncture and/or in terms thereof dispute between the parties in this behalf cannot be adjudicated upon at an interlocutory stage.The affidavit of assets annexed by the Birlas to their petition for grant of probate in respect of 1982 Will of MPD and the affidavit of assets annexed by them to the petition for grant of probate of 1982 Will of PDB show that the assets held by the former mentioned in the petition for probate of his Will of 1982 are also shown as assets of PDB.Prima facie BKB or YB were not appointed as trustee. They were only appointed as executors. An executor becomes a trustee only upon completion of administration of trust. This proposition does not appear to be in dispute. Administration of trust being incomplete, MPB did not become an executor. He, therefore, was not a trustee. Provisions of Section 73 of the Indian Trusts Act will, therefore, have no application. In the Will of PDB executed in the year 1982 he was merely named as an executor. It is also difficult, at this stage, to construe the Will of 1982 of PDB as an instrument of trust. The question in regard to the administration of the estate of PDB only arose after her death which took place in 2004. MPB died in 1990. The said provisions, therefore, have no application.Submission that RSL is an outsider and the bequest is un-natural does not appeal to us. Such a question cannot be determined at this stage. Why an owner of the property executes a Will in favour of another is a matter of his/her choice. One may by a Will deprive his close family members including his sons and daughters. She had a right to do so. The court is concerned with the genuineness of the Will. If it is found to be valid, no further question as to why did she do so would be completely out of its domain. A Will may be executed even for the benefit of others including animals. Various documents have been placed before us by the learned counsel appearing on behalf of the first respondent to show that MPB was not happy in regard to management of Birlas Group of Companies and by the division thereof which took place after the demise of G.D. Birla in 1983.177. Indisputably, however, they were separate. They were in the control and management of their respective companies. The group of companies managed by MPB and PDB were known as M.P. Birla Group of Companies. There are other companies, named separately, in the name of individual group of Birlas.We have already held that GPB has caveatable interests as executor of MPB in respect of his Will of 1982. We, therefore, see no reason as to why RSL would not have a caveatable interest being a beneficiary under the 1999 Will in the proceedings for grant of probate of the Will of MPB dated 13th July, 1982. If the grounds taken in the appeal are to be upheld, the same ex facie would destroy the case of the appellants in the other cases.We have noticed hereinbefore the averments made in the plaint of Civil Suit No.221 of 2004. Filing of the said suit, in our opinion, does not bar considering the caveatable interest and as we have not been called upon to decide the maintainability of the said suit at this stage, we do not make any observation thereupon. We have noticed the averments made in the plaint at some length only for the purpose of arriving at a finding on the question as to whether the plaintiffs therein have acquired any caveatable interest by reason thereof or not.183. In our opinion, the High Court was right in opining that a caveatable interest may arise only after suit for enforcement of mutual Will is decreed and not prior
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Ashok Shankarrao Chavan & Others Vs. Dr. Madhavrao Kinhalkar & Others | details observed by the Election Commission in its order, as to the nature of expenses and the stand of the Appellant as under : "As noted above, the main issue before the Election Commission of India was as to whether the expenditure expenses incurred for publishing two advertisements on 17th April, 2007 in the newspapers `Amar Ujala and Dainik Jagaran were shown in the account of expenses submitted by the petitioner under Section 78 of the Representation of People Act, 1951. There is no dispute between the parties that advertisement was published on 17th April, 2007 in the aforesaid two newspapers. Copy of the advertisements have been filed as Annexure-1 and 2 to the writ petition. The election Commission of India has specifically considered the advertisement published in the newspaper `Dainik Jagran on 17th April, 2010. The advertisement in the newspaper is in a block and in the bottom of the block the word `Advt has been mentioned. However, the advertisement has been disguised as a news item and the newspaper publication mentions that leaning of voters of Bisauli constituency is in favour of Smt. Umlesh Yadav, the petitioner. In the advertisement name of petitioner has been mentioned in several places and also the names of large number of persons have been mentioned quoting their view that they are in favour of the petitioner. The said publication mentions that voters have now decided to elect Smt. Umlesh Yadav, the petitioner. The details of publishing the said news item in the newspaper `Dainik Jagran was called by the Election Commission of India. Both before the Press Council of India and the Election Commission of India, the newspaper `Dainik Jagran stated that aforesaid news publication was an advertisement for which a bill of ?21,250/- in the name of Pramod Mishra was issued and client name was mentioned as D.P. Yadav and the amount was paid in cash. Similar advertisement was published in the newspaper `Amar Ujala on 17th April, 2007 which advertisement was also in a block. The advertisement although was disguised as a news item but was in a block. In the bottom of the block there was another small block with the heading `Appeal and in the bottom the word `Advt. was mentioned. The newspaper was submitted before the Election Commission of India as well as Press Council of India stating that the same was advertisement in the newspaper for which a bill of ?8,000/- in the name of D.P. Yadav was issued and paid. Both the newspapers have submitted that materials for publication of advertisement was provided on behalf of the petitioner and the material was not collected by correspondents of the newspapers. The petitioners case before the Election Commission of India was that only an appeal was published by the party from which the petitioner was contesting on 17th April, 2007 for which an amount of ?840/- was paid and bill was also issued by the newspapers of ?840/-. Petitioners case is that the said bill was drawn in the name of D.P. Yadav, the husband of the petitioner who was also the president of Rashtriya Parivartan Dal. The petitioner in this writ petition has come with specific plea that aforesaid two news publications were published by the party i.e. the Rashtriya Parivartan Dal and the expenditure of the aforesaid news publication was paid and borne by the party. Paragraph 6 of the writ petition which contains the said pleading is quoted below :-`6. That at this juncture, it may be stated here that the aforesaid two news publications were published by the Party, which the petitioner belong to, viz., Rashtriya Parivartan Dal and the expenditure for the aforesaid news publications were paid and borne by the Party. The Photostat copies of the aforesaid two news publications as published in `Amar Ujala and `Dainik Jagaran dated 17.04.2007 are being annexed herewith and marked as Annexure- 1 and 2, respectively, to this writ petition.In the writ petition, the petitioner has now having come with the plea that advertisements were got published by Rashtriya Parivartan Dal and the payment of publication was borne by the party, now the question to be considered is as to whether expenses incurred by the party for publishing the advertisement can be held to be expenses incurred or authorized by the petitioner." 116. Apart from noting the above factual aspects relating to the expenses claimed to have been incurred by the party, which claim of the Appellant was rejected by the Election Commission and also confirmed by the Division Bench of the High Court, the High Court considered the various decisions relied upon by on behalf of the Appellant and held as under : "The Election Commission of India considered the entire facts and circumstances of the present case, the reply submitted by the petitioner on 22nd July, 2011 as well as the supplementary reply dated 4th April, 2011 and has rightly exercised its jurisdiction under Section 10A of the Representation of People Act, 1951 declaring the petitioner disqualified for three years. All the conditions for exercise of power under Section 10A of the Representation of People Act, 1951 were fully satisfied and we do not find any infirmity in the order of the Election Commission of India dated 20th October, 2011 which may warrant any interference by this Court in exercise of discretionary jurisdiction." 117. Having perused the above order of the Division Bench, wherein the details with regard to the various allegations relating to the violation in the lodging of the election expenses, in such details, in the absence of glaring illegality or irregularity pointed out before us, we have no reason to interfere with those finding of facts arrived at by the Election Commission, which was also confirmed by the Division Bench after a thorough examination. Therefore, on merits as well, we do not find any good ground to interfere with the impugned order of the Election Commission disqualifying the Appellant for a period of three years. The appeals, therefore, stand dismissed. | 0[ds]21. Having dealt with the rival contentions of the parties, it would be necessary to find out whether the impugned order of the Election Commission is correct orpurpose is to find out an answer to the question posed for consideration, namely, whether under Section 10A of the Act, the Election Commission has been empowered to hold an enquiry to ascertain the correctness or otherwise of the election expenses incurred by a returned candidate for the purpose of passing the order of disqualification, either at the instance of the candidate who also contested in the said election or by any other person or based on any other information received by the Election Commission through some reliable sources. For the said purpose, in our considered view, the following provisions under the Constitution and the various sections under the Act and Rules are required to be noted.In our considered opinion if such a onerous responsibility has been imposed on the Election Commission while scrutinizing the details of the accounts of the election expenses submitted by a contesting candidate, it will have to be stated that while discharging the said responsibility, every care should be taken to ensure that no prejudice is caused to the contesting candidate. The Election Commission should also ensure that no stone is left unturned before reaching a satisfaction as to the correctness or the proper manner in which the lodgment of the account was carried out by the concerned candidate. If such a meticulous exercise has to be made as required under the law, it will have to be held that the onerous responsibility imposed on the Election Commission should necessarily contain every power and authority in him to hold an appropriate enquiry. Only such an exercise would ensure that in ultimately arriving at the satisfaction for the purpose of examining whether an order of disqualification should be passed or not as stipulated under Section 10A, the high expectation of the electorate, that is the citizens of the country reposed in the Election Commission is fully ensured and also no prejudice is caused to the contesting candidate by casually passing any order of disqualification without making proper ascertainment of the details of the accounts, the correctness of the accounts and the time within which such account was lodged by the candidate concerned.When it is stipulated under Articles 102(1)(e) and 191(1)(e) to the effect that the ascertainment of vacation of a seat of a Member of Parliament or a Member of a State Legislature would depend upon a disqualification suffered by or under the provisions of the Act, it will have to be held that the procedure to be followed for passing such an order of disqualification should be befitting the requirement of Section 10A or otherwise when an opinion is sought for from the Election Commission under Article 103(2) or 192(2), it would be rather impossible for the Election Commission to sustain any such order of disqualification. The Act in that respect cannot be held to have imposed in the Election Commission a responsibility which will not synchronise with the original order of disqualification to be made under Section 10A of the said Act and for the ultimate opinion to be rendered after such disqualification order is passed for the purpose of enabling the President of India and the Governor of a State to take appropriate decision for ascertaining the status of a member to vacate his seat as a Member of Parliament or State Legislature. It would be incongruous to visualise such a situation while reading Articles 101 to 103 and 190 to 192 of the Constitution, read along with Sections 146 and 10A of the Act. We, therefore, have no hesitation in asserting the legal position that an order to be passed under Section 10A of the said Act, could be no less important than an opinion to be rendered by the Election Commission under Section 146 when sought for by the President of India or the Governor of the concerned States. In our considered opinion, therefore, the exercise to be made under Section 10A of the said Act would certainly include the requirement of not a farce of an enquiry but a true and complete one to determine whether the return of election expenses by an elected candidate is a true/correct or false/bogus return and that would not depend upon the decision of the Election Tribunal (High Court), which is provided under the Act for validating the election of a returned candidate on very many grounds set out in Section 123 of the Act, including the one under Section 123(6) which contemplates the compliance of the requirement under Sections 77 and 78 of the Act. However, it will have to be stated that if the said issue was squarely dealt with by the Election Tribunal (High Court) based on the entire materials that were also placed before the Election Commission and the Election Tribunal (High Court) had dealt with the said issue in detail and recorded a finding after examining such materials threadbare, there is no reason for the Election Commission to give due weight to such a finding of the Election Tribunal (High Court) while exercising its jurisdiction under Section 10A. With this we wish to deal with the various submissions of the respectivefind force in the submission of the learned counsel for the Respondents. As was pointed out by us earlier, the challenge to an election by way of an Election Petition is provided for under Article 329(b) of the Constitution and the manner in which such Election Petition is to be filed and the procedure to be followed were all set out in Sections 80 to 116 of the Act.Having considered the respective submissions of the learned counsel, we are also convinced that the decision in L.R. Shivaramagowda (supra) does not call for reconsideration. As rightly pointed out by the learned Senior Counsel for the Election Commission, as well as the other learned counsel for the Respondents, the scope and ambit of Section 7(c) has been widened by metes and bounds in Section 10A in its presentdealing with the said contention, it will have to be noted that having regard to the scope of Articles 101 to 103 and 190 to 192 of the Constitution, any order of disqualification passed against a Member of Parliament or a Member of a Legislature will have to be considered by the President of India and the Governor of a State respectively for taking a decision as to the consequence that should follow by reason of such an order of disqualification. Even at that stage, there is another filter point in the form of an opinion to be rendered by the Election Commission to the President of India or the Governor of the State before taking a decision as to whether the member elected should vacate his office pursuant to such disqualification. For the reasons which we have elaborately stated while dealing with the scope and power of jurisdiction of the Election Tribunal (High Court) and the power of the Election Commission under Section 10A, it will have to be stated that the said submission no longer survives for consideration. The same is, therefore, rejected.When we consider the above submission, we find force in the submissions of the learned counsel for the Respondents. Reading Section 10A along with Rules 87 to 90, in particular, the right conferred on any person to seek for inspection of the accounts submitted, it will have to be held that such a right is not conferred merely to look into the details of the account. If based on the inspection, made by a person under Rule 88 and the attested copies of such accounts disclose that the candidate concerned committed a very serious illegality in the matter of submission of the account of election expenses, it must be stated that such a person will have every right to bring it to the notice of the Election Commission for taking appropriate legal recourse available to that person under the Act. It may be stated that once any such misfeasance in the submission of the account of the election expenses is brought to the notice of the Election Commission, thereafter it would be for the Election Commission to set the process in motion for deciding the issue as contemplated in Section 10A of the Act. It cannot be said that no person can by way of a complaint approach the Election Commission.That was a case where the nomination of a candidate rejected by the returning officer could be challenged only by of an Election Petition under Section 329(b) and if that be so, whether any other proceedings could be resorted to including a proceeding under Article 226 of the Constitution challenging the rejection of the nomination. Dealing with that situation, this Court held that the word `election can be and has been appropriately used with reference to the entire process, which consists of several stages and embraces many steps some of which may have important bearing on the result of the process. Therefore, it was held that if the grounds on which an election can be called in question, could be raised at an earlier stage and the errors, if any, are rectified there will be no meaning in enacting a provision like Article 329(b) and in setting up a Special Tribunal. It was further held that any other meaning ascribed to the words used in the Article would lead to anomalies which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at thestage and by the Election Tribunal, which is to be an independent body at the stage when the matter is brought up before it. In the light of the situation in which the overall jurisdiction of the Election Tribunal (High Court) relating to a challenge that can be made to an election can be made as provided under Article 329(b), this Court having held that the word `election would include very many process till the completion of the polling and the declaration of the result and, therefore, there cannot be a piecemeal challenge permitted to be made by way of a Writ Petition under Article 226. The said proposition of law, as declared by this Court, can never be controverted. In the case on hand, there was no attempt made by anyone to challenge the election of the Appellant by resorting to a complaint which has emanated in the form of proceeding under Section 10A by the Election Commission. In fact, in a proceeding under Section 10A, there is no scope or power vested with Election Commission to declare the election as invalid. Therefore, there is no question of any violation of Article 329(b) that would arise in the case on hand. We, therefore, do not find any support from the said decision for the Appellant.In the light of such statutory prescription contained in the Act clearly distinguishing the different role to be played by an Election Tribunal (High Court) and the Election Commission as compared to the provisions contained in the Himachal Pradesh Panchayat Raj Act, 1994, the said decision also does not support the stand of the Appellant.77. Reliance was also placed upon Dalchand Jain (supra) to contend that suppression of certain expenses incurred in the election while submitting the return as stipulated under Section 77 would amount to a corrupt practice as specified in Section 123(6) and consequently, in that case on finding that such nondisclosure of expenditure amounted to corrupt practice, the election was set aside by an Election Tribunal (High Court). When the said order of the Election Tribunal (High Court) was challenged before this Court, after examining the factual matrix in detail, this Court upheld the order of the Election Tribunal (High Court) holding that the same did not call for any interference. It will have to be stated that the said decision can have no application to the case on hand, inasmuch as, the question whether the jurisdiction of the Election Commission under Section 10A would stand excluded by virtue of the dismissal of an Election Petition by the Election Tribunal (High Court) at the instance of one of the Complainants in the case of the Appellant in the appeal (@ SLP(C) No. 29882 of 2011) was not the point in issue. There was also no issue raised as to whether as a general proposition of law, jurisdiction under Section 10A of the Act for passing an order of disqualification for failure to lodge the account in the manner and as required by or under the Act can only be raised as a ground of attack for setting aside an election before the Election Tribunal (High Court). Therefore, we do not find any scope to apply the said decision to the facts of this case.78. Reliance was then placed upon a Constitution Bench decision of this Court reported in Brundaban Nayak (supra). In the said judgment, which was prior to the introduction of Section 10A and the corresponding Rules, relating to the said section. In Paragraph 19, after noting the observations made by the Chief Election Officer, while rendering its opinion at the request of the Governor as provided under Article 192 of the Constitution, when relevant facts are in dispute it can be ascertained only after a proper enquiry, this Court observed as under in paragraph 19would like to invite the attention of parliament to these observations, because we think that the difficulty experienced by Election Commission in rendering its opinion under Article 103 (2) or Article 192 (2) appears to be genuine and so parliament may well consider whether the suggestion made by the Chief Election Commissioner should not be accepted and appropriate legislation adopted in that behalf".The reliance placed upon the decision of this Court in Jagan Nath (supra) is totally misconceived, inasmuch as, the said judgment came to be rendered when there was a specific provision in(1) and (2) of Sections 100 and 101 by which an election of a successful candidate can be called in question by way of an Election Petition before the Election Commission itself. Inasmuch as the said power vested with the Election Commission is no longer available under the said provisions, which has now been entrusted with the Election Tribunal (High Court) alone, the reliance placed upon the said decision is of no use to the Appellant.No one can quarrel with the proposition as laid down in the above paragraphs. The question is whether under Section 10A and the other alleged provisions under the Act, as well as, the Rules, such a power has been invested with the Election Commission. We have elaborately referred to the various provisions in the Act, as well as the Rules in particular Section 10A, Section 77(1) and (3), Section 78 read along with Rules 86 to 90 and have held that such a power to hold an enquiry before passing an order of disqualification under Section 10A has been invested with the Election Commission. Therefore, even applying the above said principles, we do not find any scope to take a different view.84. We do not find any support from the decision relied upon by the learned Senior Counsel on Andhra Provincial Potteries Ltd. & Ors. (supra). Reliance was placed upon the principle stated in paragraph 7, wherein it was held that in interpreting a penal provision, it is not permissible to give an extended meaning to the plain words of the Section. Inasmuch as the said principle has been stated while interpreting a penal provision, it will have to be stated that the said principle cannot be applied while interpreting Section 10A. In any event we have found that in Rule 89(5), it has been specifically provided that the Election Commission should issue a show cause notice for the purpose of passing any order of disqualification under Section 10A calling upon the candidate concerned to submit its representation in writing. Under(6) of Rule 89 it has been further clarified that a contesting candidate who has been called upon to show cause under(5) may within 20 days of the receipt of such notice, submit a representation in writing to the Election Commission simultaneously forwarding a copy to the DEO together with a complete account of his election expenses if he had not already furnished such an account.Reliance was placed upon the recent decision of this Court reported in Secretary, A.P.D. Jain Pathshala & Ors. (supra) for the proposition that ad hoc authorities cannot be permitted to exercise judicial functions and that the executive power of the State cannot be extended to creating Judicial Tribunals or Authorities exercising juridical powers and rendering judicial decisions. The said decision came to be rendered while examining the scope of binding nature of a decision rendered by a three member Grievance Redressal Committee constituted under a scheme called Shikshan Sevak Scheme in all recognized private secondary/higher secondary school/junior colleges/B.Ed. colleges in the State of Maharashtra. Such a scheme was not under any statute or was not governed by any statutory provision. In examining the scope of authority of such a committee called Grievance Redrassal Committee formed under a scheme in the purported exercise of executive authority, this Court held that constitution of a Grievance Committee, as a public adjudicatory forum whose decisions are supposedly binding on the parties to the dispute pursuant to executive order of the Government, was impermissible. We do not find any scope to apply the said decision, inasmuch as, there is a world of difference as between the Constitution of a Grievance Redressal Committee under a Scheme with no statutory support and the existence of a Constitutional Authority, viz the Election Commission, created under the Constitution of India, which has been invested with the powers of superintendence, control and issuance of directions for the purpose of holding public elections in this country, apart from the entrustment of specific powers under the Act, inter alia, under Section 10A and 11 and such powers are to be exercised in accordance with the Rules, viz the Conduct of the Election Rules. The said decision also, therefore, does not help the Appellant.88. We find that the reliance placed upon the decision reported in Election Commission of India Through Secretary (supra) is not applicable to the case on hand, inasmuch as, in the said decision, the question posed for consideration was as to what extent Article 329(b) had overriding effect on Article 226 of the Constitution. This Court as a proposition of law stated that if the petition presented to the Court calls in question an election, the bar of Article 329(b) is attracted, else it is not. We do no find any reference to any of the issues which arise for consideration in the case on hand in the said judgment. Therefore, the said decision also does not support the case of the Appellant.89. Reliance was placed upon the decision reported in Bharat Aluminium Company (supra) paragraphs 165, 166 and 168 for the proposition that the legislation cannot be construed contrary to Parliaments intention, just to avoid any hardship. In support of his contention, he submitted that the complainants before the Election Commission have no locus standi to raise the issue under Section 10A. We have found that the power in Election Commission under Section 10A is inherent. We have also held by making reference to Sections 77 (1), (2) & (3) and 78, read along with Rules 86 to 90 that there is every right in any member of the electorate who is entitled to seek for inspection of the account submitted by a candidate and also get the authenticated copy of such statement. He is also entitled to bring to the notice of the Election Commission any serious flaw in the account of election expenses submitted by a contesting candidate.90. Our conclusion is, therefore, based on an interpretation of the statutory provisions in the Act, as well as the Rules. Therefore, the reliance placed upon the decisions reported in Bharat Aluminium Company (supra) and M. Karunanidhi (supra) does not support the case of the Appellant.91. The decision reported in Siddharam Satlingappa Mhetre (supra) was relied upon for the proposition that a decision delivered by a larger Bench is binding on any subsequent Bench of lesser orstrength. The submission was that the decision rendered in Sucheta Kripalani (supra) is a Constitution Bench decision, while the one rendered in L.R. Shivaramagowda (supra) is by three Judge Bench and that since the Constitution Bench decision covered the issue, the same should have been followed and, therefore, the law laid down in L.R. Shivaramagowda (supra) need not be followed.92. Having considered the said submission of the learned Senior Counsel Mr. Gopal Subramanium in the earlier part of the judgment while examining the then existing Section 7(c) and 8(b) and insertion of Section 10A replacing the earlier Section 7(c) and 8(b), we have held that the ratio laid down in Sucheta Kripalani based on Section 7(c) and 8(b), cannot be applied and that decision in L.R. Shivaramagowda (supra), which came to be rendered after the insertion of Section 10A alone would apply. We have examined in detail as to how the insertion of Section 10A in the place of Section 7(c) and 8(b) has widened the powers and scope of the Election Commission for passing an order of disqualification which was squarely considered by this court in L.R. Shivaramagowda (supra). In the light of the said position, the reliance placed upon Siddharam Satlingappa Mhetre (supra) is also of no assistance to the Appellant.We do not find any scope to apply the said decision to the case on hand. What was highlighted in the said decision was that though the phrase mentioned `in the prescribed manner in Section 8 (4), yet significantly there was no prescription of any time limit. The authority on its own prescribed the time limit, and therefore, it was held that when such a prescription was not found in the Act, it was not within the authority of the concerned assessing authority to prescribe any time limit. In fact, there was no challenge to the authority exercised by the concerned officer. What was held was that while exercising the authority, there was exercise of jurisdiction by prescribing a time limit which was not provided for in the statute. We are dealing with a case where the power prescribed under Section 10A of the Act provides that the Election Commission on finding that the lodgment of the account of election expenses was not in the manner prescribed and as required under the Act can pass an order of disqualification. The question is when Section 77(1) and (3) of the Act read with section 78, which prescribe a time limit within which the lodgment of account should be made by a contesting candidate considering the rules prescribed in Section 89, whether the Election Commission is invested with the powers to examine the statement of account lodged by a contesting candidate and find out whether such lodgment of the account was within the time prescribed and that it reflected a true, correct and bona fide accounts. Therefore, when such prescriptions are contained in the Act and the Election Commission has to only find out whether such prescriptions in the other provisions of the Act have been duly complied with or not, we fail to see any ground to apply the ratio of the above decision to the case on hand. Therefore, the said decision also does not support the stand of the Union of India.Applying the above well known principle to the facts of this case, we are not persuaded to accept the submission of Mr. Gopal Subramanium, learned Senior Counsel. If the submissions were to be accepted and it will have to be held that Election Commission will have no jurisdiction to make an enquiry for the purpose of ascertaining the fulfillment of the requirement as contained in Section 10A then the very provision, namely, Section 10A will have to be rendered otiose. We are, therefore, not able to accede to the said submission. On the other hand, if Section 10A has to operate, the conclusion of ours that the Election Commission has the required jurisdiction to make the enquiry into the complaint alleged as against the Appellant is well justified.101. To the same effect is the decision reported in Afjal Imam v. State of Bihar & Ors., 2011(5) SCC 729 which was also relied upon by Ms. Pinki Anand, learned Senior Counsel.In the light of the above categoric statement made while holding that the rule of law and free and fair elections are the basic features and facts of our democracy, Article 324 should be interpreted in a wide perspective giving power to the Election Commission which has to be recognized in a broad sense and not in a narrow one. We fully approve of the submissions of Mr. Ashok Desai, learned Senior Counsel on the above lines and we have already held that in order to ensure free and fair elections, the power vested with the Election Commission under Section 10A read along with the other provisions of the Act and the Rules, it should be held that Election Commission does possess the requisite powers under Section 10A to hold the necessary enquiry to ascertain the fact about the compliance of the statutory requirements in the matter of submission of accounts of the election expenses, i.e. the true, correct and bona fide expenses and that such expenses were within the prescribed limit of the Act.A political party which is not maintaining, audited and authenticated, accounts and has not filed the return of income for the relevant period, cannot, ordinarily, be permitted to say that it has incurred or authorized expenditure in connection with the election of its candidates in terms of Explanation I to Section 77 of the RP Act.6. That the expenditure, (including that for which the candidate is seeking protection under Explanation 1 to Section 77 of the RP Act) in connection with the election of a candidateto the knowledge of the candidate or his election agentshall be presumed to have been authorised by the candidate or his election agent. It shall, however, be open to the candidate to rebut the presumption in accordance with law and to show that part of the expenditure or whole of it was in fact incurred by the political party to which he belongs or by any other association or body of persons or by an individual (other than the candidate or his election agent). Only when the candidate discharges the burden and rebuts the presumption he would be entitled to the benefit of Explanation 1 to Section 77 of the RP Act.......At the end we can profitably refer to the basics of our democracy, which have been succinctly stated by His Lordship Justice V.R. Krishna Iyer in the Constitution Bench decision reported in Mohinder Singh Gill & Anr. v. Chief Election Commission, New Delhi & Ors., 1978(1) SCC 405. To borrow His Lordships expression stated in paragraph 2, the same are as underEvery significant case has an unwritten legend and indelible lesson. This appeal is no exception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless words :`At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men `dressed in little, brief authority. For `be you ever so high, the law is above you.In our considered view, if the above basics of democracy and purity in elections have to be maintained, it is appropriate to hold that the decision of the Election Commission as upheld by the High Court to the effect that Section 10A clothes the Election Commission with the requisite power and authority to enquire into the allegations relating to failure to submit the accounts of election expenses in the manner prescribed and as required by or under the Act, is perfectly justified and we do not find any scope to interfere with the same. Inasmuch as the period of membership is likely to come to an end, it will be in order for the Election Commission to conclude the proceedings within one month and pass appropriate orders in accordance with law. In order to ensure that within the said period the Election Commission is not prevented from passing the orders due to noncooperation of any of the parties, it will open for the Election Commission to hold the proceedings on a day to day basis and conclude the same within the said period.Apart from noting the above factual aspects relating to the expenses claimed to have been incurred by the party, which claim of the Appellant was rejected by the Election Commission and also confirmed by the Division Bench of the High Court, the High Court considered the various decisions relied upon by on behalf of the Appellant and held as underElection Commission of India considered the entire facts and circumstances of the present case, the reply submitted by the petitioner on 22nd July, 2011 as well as the supplementary reply dated 4th April, 2011 and has rightly exercised its jurisdiction under Section 10A of the Representation of People Act, 1951 declaring the petitioner disqualified for three years. All the conditions for exercise of power under Section 10A of the Representation of People Act, 1951 were fully satisfied and we do not find any infirmity in the order of the Election Commission of India dated 20th October, 2011 which may warrant any interference by this Court in exercise of discretionary jurisdiction.Having perused the above order of the Division Bench, wherein the details with regard to the various allegations relating to the violation in the lodging of the election expenses, in such details, in the absence of glaring illegality or irregularity pointed out before us, we have no reason to interfere with those finding of facts arrived at by the Election Commission, which was also confirmed by the Division Bench after a thorough examination. Therefore, on merits as well, we do not find any good ground to interfere with the impugned order of the Election Commission disqualifying the Appellant for a period of three years. The appeals, therefore, stand dismissed. | 0 | 34,263 | 5,637 | ### 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:
details observed by the Election Commission in its order, as to the nature of expenses and the stand of the Appellant as under : "As noted above, the main issue before the Election Commission of India was as to whether the expenditure expenses incurred for publishing two advertisements on 17th April, 2007 in the newspapers `Amar Ujala and Dainik Jagaran were shown in the account of expenses submitted by the petitioner under Section 78 of the Representation of People Act, 1951. There is no dispute between the parties that advertisement was published on 17th April, 2007 in the aforesaid two newspapers. Copy of the advertisements have been filed as Annexure-1 and 2 to the writ petition. The election Commission of India has specifically considered the advertisement published in the newspaper `Dainik Jagran on 17th April, 2010. The advertisement in the newspaper is in a block and in the bottom of the block the word `Advt has been mentioned. However, the advertisement has been disguised as a news item and the newspaper publication mentions that leaning of voters of Bisauli constituency is in favour of Smt. Umlesh Yadav, the petitioner. In the advertisement name of petitioner has been mentioned in several places and also the names of large number of persons have been mentioned quoting their view that they are in favour of the petitioner. The said publication mentions that voters have now decided to elect Smt. Umlesh Yadav, the petitioner. The details of publishing the said news item in the newspaper `Dainik Jagran was called by the Election Commission of India. Both before the Press Council of India and the Election Commission of India, the newspaper `Dainik Jagran stated that aforesaid news publication was an advertisement for which a bill of ?21,250/- in the name of Pramod Mishra was issued and client name was mentioned as D.P. Yadav and the amount was paid in cash. Similar advertisement was published in the newspaper `Amar Ujala on 17th April, 2007 which advertisement was also in a block. The advertisement although was disguised as a news item but was in a block. In the bottom of the block there was another small block with the heading `Appeal and in the bottom the word `Advt. was mentioned. The newspaper was submitted before the Election Commission of India as well as Press Council of India stating that the same was advertisement in the newspaper for which a bill of ?8,000/- in the name of D.P. Yadav was issued and paid. Both the newspapers have submitted that materials for publication of advertisement was provided on behalf of the petitioner and the material was not collected by correspondents of the newspapers. The petitioners case before the Election Commission of India was that only an appeal was published by the party from which the petitioner was contesting on 17th April, 2007 for which an amount of ?840/- was paid and bill was also issued by the newspapers of ?840/-. Petitioners case is that the said bill was drawn in the name of D.P. Yadav, the husband of the petitioner who was also the president of Rashtriya Parivartan Dal. The petitioner in this writ petition has come with specific plea that aforesaid two news publications were published by the party i.e. the Rashtriya Parivartan Dal and the expenditure of the aforesaid news publication was paid and borne by the party. Paragraph 6 of the writ petition which contains the said pleading is quoted below :-`6. That at this juncture, it may be stated here that the aforesaid two news publications were published by the Party, which the petitioner belong to, viz., Rashtriya Parivartan Dal and the expenditure for the aforesaid news publications were paid and borne by the Party. The Photostat copies of the aforesaid two news publications as published in `Amar Ujala and `Dainik Jagaran dated 17.04.2007 are being annexed herewith and marked as Annexure- 1 and 2, respectively, to this writ petition.In the writ petition, the petitioner has now having come with the plea that advertisements were got published by Rashtriya Parivartan Dal and the payment of publication was borne by the party, now the question to be considered is as to whether expenses incurred by the party for publishing the advertisement can be held to be expenses incurred or authorized by the petitioner." 116. Apart from noting the above factual aspects relating to the expenses claimed to have been incurred by the party, which claim of the Appellant was rejected by the Election Commission and also confirmed by the Division Bench of the High Court, the High Court considered the various decisions relied upon by on behalf of the Appellant and held as under : "The Election Commission of India considered the entire facts and circumstances of the present case, the reply submitted by the petitioner on 22nd July, 2011 as well as the supplementary reply dated 4th April, 2011 and has rightly exercised its jurisdiction under Section 10A of the Representation of People Act, 1951 declaring the petitioner disqualified for three years. All the conditions for exercise of power under Section 10A of the Representation of People Act, 1951 were fully satisfied and we do not find any infirmity in the order of the Election Commission of India dated 20th October, 2011 which may warrant any interference by this Court in exercise of discretionary jurisdiction." 117. Having perused the above order of the Division Bench, wherein the details with regard to the various allegations relating to the violation in the lodging of the election expenses, in such details, in the absence of glaring illegality or irregularity pointed out before us, we have no reason to interfere with those finding of facts arrived at by the Election Commission, which was also confirmed by the Division Bench after a thorough examination. Therefore, on merits as well, we do not find any good ground to interfere with the impugned order of the Election Commission disqualifying the Appellant for a period of three years. The appeals, therefore, stand dismissed.
### Response:
0
### Explanation:
Article 324 should be interpreted in a wide perspective giving power to the Election Commission which has to be recognized in a broad sense and not in a narrow one. We fully approve of the submissions of Mr. Ashok Desai, learned Senior Counsel on the above lines and we have already held that in order to ensure free and fair elections, the power vested with the Election Commission under Section 10A read along with the other provisions of the Act and the Rules, it should be held that Election Commission does possess the requisite powers under Section 10A to hold the necessary enquiry to ascertain the fact about the compliance of the statutory requirements in the matter of submission of accounts of the election expenses, i.e. the true, correct and bona fide expenses and that such expenses were within the prescribed limit of the Act.A political party which is not maintaining, audited and authenticated, accounts and has not filed the return of income for the relevant period, cannot, ordinarily, be permitted to say that it has incurred or authorized expenditure in connection with the election of its candidates in terms of Explanation I to Section 77 of the RP Act.6. That the expenditure, (including that for which the candidate is seeking protection under Explanation 1 to Section 77 of the RP Act) in connection with the election of a candidateto the knowledge of the candidate or his election agentshall be presumed to have been authorised by the candidate or his election agent. It shall, however, be open to the candidate to rebut the presumption in accordance with law and to show that part of the expenditure or whole of it was in fact incurred by the political party to which he belongs or by any other association or body of persons or by an individual (other than the candidate or his election agent). Only when the candidate discharges the burden and rebuts the presumption he would be entitled to the benefit of Explanation 1 to Section 77 of the RP Act.......At the end we can profitably refer to the basics of our democracy, which have been succinctly stated by His Lordship Justice V.R. Krishna Iyer in the Constitution Bench decision reported in Mohinder Singh Gill & Anr. v. Chief Election Commission, New Delhi & Ors., 1978(1) SCC 405. To borrow His Lordships expression stated in paragraph 2, the same are as underEvery significant case has an unwritten legend and indelible lesson. This appeal is no exception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless words :`At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men `dressed in little, brief authority. For `be you ever so high, the law is above you.In our considered view, if the above basics of democracy and purity in elections have to be maintained, it is appropriate to hold that the decision of the Election Commission as upheld by the High Court to the effect that Section 10A clothes the Election Commission with the requisite power and authority to enquire into the allegations relating to failure to submit the accounts of election expenses in the manner prescribed and as required by or under the Act, is perfectly justified and we do not find any scope to interfere with the same. Inasmuch as the period of membership is likely to come to an end, it will be in order for the Election Commission to conclude the proceedings within one month and pass appropriate orders in accordance with law. In order to ensure that within the said period the Election Commission is not prevented from passing the orders due to noncooperation of any of the parties, it will open for the Election Commission to hold the proceedings on a day to day basis and conclude the same within the said period.Apart from noting the above factual aspects relating to the expenses claimed to have been incurred by the party, which claim of the Appellant was rejected by the Election Commission and also confirmed by the Division Bench of the High Court, the High Court considered the various decisions relied upon by on behalf of the Appellant and held as underElection Commission of India considered the entire facts and circumstances of the present case, the reply submitted by the petitioner on 22nd July, 2011 as well as the supplementary reply dated 4th April, 2011 and has rightly exercised its jurisdiction under Section 10A of the Representation of People Act, 1951 declaring the petitioner disqualified for three years. All the conditions for exercise of power under Section 10A of the Representation of People Act, 1951 were fully satisfied and we do not find any infirmity in the order of the Election Commission of India dated 20th October, 2011 which may warrant any interference by this Court in exercise of discretionary jurisdiction.Having perused the above order of the Division Bench, wherein the details with regard to the various allegations relating to the violation in the lodging of the election expenses, in such details, in the absence of glaring illegality or irregularity pointed out before us, we have no reason to interfere with those finding of facts arrived at by the Election Commission, which was also confirmed by the Division Bench after a thorough examination. Therefore, on merits as well, we do not find any good ground to interfere with the impugned order of the Election Commission disqualifying the Appellant for a period of three years. The appeals, therefore, stand dismissed.
|
NARENDRA KUMAR Vs. CHAIRMAN AND MANAGING DIRECTOR SYNDICATE BANK | in favour of the appellant on 15.7.2010 staying the operation of the impugned orders dated 31.05.2010 and 10.03.2008. 10. The Bank opposed the writ petition and pleadings were completed. Some supplementary affidavits were also filed and, alongwith the same, the appellant filed a letter dated 25.7.2013 addressed by the respondent No.4 to respondent No.1 Bank obtained through RTI, the relevant portion of which is extracted hereunder: From the abovementioned events, it may be observed that appointment of Shri Kumar was made after proper No Objection & Vigilance Clearance from the bank. The appointment offer dated 20.01.2006 was also sent to them giving clear stipulations that Shri Kumar is requested to assume the charge of the post within the stipulated period. When Shri Kumar joined the post, a notification dated 09.02.2006 was issued which was also sent to the Bank. There was no communication from bank after issue of appointment letter dated 20.01.2006 and notification dated 09.02.2006. Bank raised the matter with the Ministry for the first time vide letter dated 17.7.2006 after a gap of more than 6 months. It may also be observed that during the complete correspondence between Ministry & Bank there was no indication about treatment of service of Shri Kumar & it was on directions of the bank that Shri Kumar took retirement from service of bank. Thus, action of the bank in treating the service of Shri Kumar from Jan 2006 to date of retirement as unauthorized absence and denial of pensionary benefits does not appear appropriate. [emphasis supplied] The communication addressed by respondent No.4 to respondent No.1, however, did not invoke any response. 11. The writ petition was heard and dismissed on 31.3.2017 by the Division Bench. It is this order which is sought to be assailed in the present appeal. The impugned order records that the appellant was not granted pension in view of the alleged non-compliance of Clause 22(2) of the Syndicate Bank Employees Pension Regulations, 1995 (hereinafter referred to as Pension Regulations) as he was required to join back the service of the bank on being relieved from the DRT on 27.1.2006 but he straight away joined the post of the Presiding Officer of the DRT, Lucknow. The period from 28.1.2006 was treated as willful abandonment of service. The relevant extract of the Pension Regulations reads as under: 22. Forfeiture of Service:- (1) ………… (2) An interruption in the service of a Bank employee entails forfeiture of his past service, except in the following cases, namely- 12. The impugned order recognizes that No Objection Certificate to participate in the selection process had been obtained by the appellant but the fact that he joined the post of the Presiding Officer, DRT without reporting to his parent department was considered fatal. The conduct of the appellant was held to be treated as abandonment of bank service. 13. We have examined the submissions advanced by learned counsel for the appellant and learned counsel for respondent No.1 in the contours of the aforesaid factual position. In our view, the impugned decisions of the respondent No.1 Bank are wholly unjustified and unsustainable in law even as per the Pension Regulations. 14. The appellant was on deputation from time to time. Before applying for the post of Presiding officer, DRT, a No Objection Certificate had been obtained from the respondent No.1 Bank. The period of deputation of the appellant was extended keeping in mind the fact that he had already applied for the post and his application was pending consideration. It is during the extended period that the appellant was issued the appointment letter on 20.1.2006. T o say the least, it is a hyper technical view to take that the appellant ought to have joined the respondent No.1 Bank for a couple of days, got himself relieved and then joined the office of the Presiding Officer, DRT. It, thus, appears to be more of an ego issue rather than any case of service impropriety or illegality. The appellant even took the precaution to write a letter on 25.1.2006 to respondent No.1 Bank for permission to take over charge of the new post of Presiding Officer which post he had to occupy within a period of one month as stated aforesaid from the date of issue of letter dated 20.1.2006. This letter received no response for 11 months, a clear laxity on the part of the respondent No.1 Bank. The appellant, thus, joined the post of the Presiding Officer. No shadow whatsoever can be cast over the conduct of the appellant in this behalf. 15. Now, turning even to the so called technicality of the appellant based on Clause 22(2) of the Pension Regulations, the same requires any interruption in service of a Bank employee to entail forfeiture of his past service. In our view, there was no interruption of service of the Bank employee as would cause such forfeiture. The appellant was on deputation when he was so appointed and took over the new post. The fact that he did not report back to the Bank for a couple of days, got himself relieved and then joined the post cannot be categorized as interruption in service by any stretch of imagination. As noticed above, the appellant had already addressed a communication to respondent No.1 Bank on 25.1.2006 which elicited no response for 11 months. We may also add that even the Ministry of Finance, the parent Ministry of respondent No.1 Bank, brought to the notice of the Bank the inappropriateness of not extending the benefits by commenting, as extracted aforesaid. It has been noted that there was no communication from the Bank after issue of appointment letter dated 20.1.2006 and notification dated 9.2.2006 till the matter was raised with the Ministry for the first time by the Bank after a gap of more than 6 months on 17.7.2006. 16. It is unfortunate that such a stand was sought to be taken by the Bank resting on unjustified ego of someone, causing immense suffering to the appellant. | 1[ds]13. We have examined the submissions advanced by learned counsel for the appellant and learned counsel for respondent No.1 in the contours of the aforesaid factual position. In our view, the impugned decisions of the respondent No.1 Bank are wholly unjustified and unsustainable in law even as per the Pension Regulations14. The appellant was on deputation from time to time. Before applying for the post of Presiding officer, DRT, a No Objection Certificate had been obtained from the respondent No.1 Bank. The period of deputation of the appellant was extended keeping in mind the fact that he had already applied for the post and his application was pending consideration. It is during the extended period that the appellant was issued the appointment letter on 20.1.2006. T o say the least, it is a hyper technical view to take that the appellant ought to have joined the respondent No.1 Bank for a couple of days, got himself relieved and then joined the office of the Presiding Officer, DRT. It, thus, appears to be more of an ego issue rather than any case of service impropriety or illegality. The appellant even took the precaution to write a letter on 25.1.2006 to respondent No.1 Bank for permission to take over charge of the new post of Presiding Officer which post he had to occupy within a period of one month as stated aforesaid from the date of issue of letter dated 20.1.2006. This letter received no response for 11 months, a clear laxity on the part of the respondent No.1 Bank. The appellant, thus, joined the post of the Presiding Officer. No shadow whatsoever can be cast over the conduct of the appellant in this behalf15. Now, turning even to the so called technicality of the appellant based on Clause 22(2) of the Pension Regulations, the same requires any interruption in service of a Bank employee to entail forfeiture of his past service. In our view, there was no interruption of service of the Bank employee as would cause such forfeiture. The appellant was on deputation when he was so appointed and took over the new post. The fact that he did not report back to the Bank for a couple of days, got himself relieved and then joined the post cannot be categorized as interruption in service by any stretch of imagination. As noticed above, the appellant had already addressed a communication to respondent No.1 Bank on 25.1.2006 which elicited no response for 11 months. We may also add that even the Ministry of Finance, the parent Ministry of respondent No.1 Bank, brought to the notice of the Bank the inappropriateness of not extending the benefits by commenting, as extracted aforesaid. It has been noted that there was no communication from the Bank after issue of appointment letter dated 20.1.2006 and notification dated 9.2.2006 till the matter was raised with the Ministry for the first time by the Bank after a gap of more than 6 months on 17.7.200616. It is unfortunate that such a stand was sought to be taken by the Bank resting on unjustified ego of someone, causing immense suffering to the appellant. | 1 | 2,622 | 573 | ### 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:
in favour of the appellant on 15.7.2010 staying the operation of the impugned orders dated 31.05.2010 and 10.03.2008. 10. The Bank opposed the writ petition and pleadings were completed. Some supplementary affidavits were also filed and, alongwith the same, the appellant filed a letter dated 25.7.2013 addressed by the respondent No.4 to respondent No.1 Bank obtained through RTI, the relevant portion of which is extracted hereunder: From the abovementioned events, it may be observed that appointment of Shri Kumar was made after proper No Objection & Vigilance Clearance from the bank. The appointment offer dated 20.01.2006 was also sent to them giving clear stipulations that Shri Kumar is requested to assume the charge of the post within the stipulated period. When Shri Kumar joined the post, a notification dated 09.02.2006 was issued which was also sent to the Bank. There was no communication from bank after issue of appointment letter dated 20.01.2006 and notification dated 09.02.2006. Bank raised the matter with the Ministry for the first time vide letter dated 17.7.2006 after a gap of more than 6 months. It may also be observed that during the complete correspondence between Ministry & Bank there was no indication about treatment of service of Shri Kumar & it was on directions of the bank that Shri Kumar took retirement from service of bank. Thus, action of the bank in treating the service of Shri Kumar from Jan 2006 to date of retirement as unauthorized absence and denial of pensionary benefits does not appear appropriate. [emphasis supplied] The communication addressed by respondent No.4 to respondent No.1, however, did not invoke any response. 11. The writ petition was heard and dismissed on 31.3.2017 by the Division Bench. It is this order which is sought to be assailed in the present appeal. The impugned order records that the appellant was not granted pension in view of the alleged non-compliance of Clause 22(2) of the Syndicate Bank Employees Pension Regulations, 1995 (hereinafter referred to as Pension Regulations) as he was required to join back the service of the bank on being relieved from the DRT on 27.1.2006 but he straight away joined the post of the Presiding Officer of the DRT, Lucknow. The period from 28.1.2006 was treated as willful abandonment of service. The relevant extract of the Pension Regulations reads as under: 22. Forfeiture of Service:- (1) ………… (2) An interruption in the service of a Bank employee entails forfeiture of his past service, except in the following cases, namely- 12. The impugned order recognizes that No Objection Certificate to participate in the selection process had been obtained by the appellant but the fact that he joined the post of the Presiding Officer, DRT without reporting to his parent department was considered fatal. The conduct of the appellant was held to be treated as abandonment of bank service. 13. We have examined the submissions advanced by learned counsel for the appellant and learned counsel for respondent No.1 in the contours of the aforesaid factual position. In our view, the impugned decisions of the respondent No.1 Bank are wholly unjustified and unsustainable in law even as per the Pension Regulations. 14. The appellant was on deputation from time to time. Before applying for the post of Presiding officer, DRT, a No Objection Certificate had been obtained from the respondent No.1 Bank. The period of deputation of the appellant was extended keeping in mind the fact that he had already applied for the post and his application was pending consideration. It is during the extended period that the appellant was issued the appointment letter on 20.1.2006. T o say the least, it is a hyper technical view to take that the appellant ought to have joined the respondent No.1 Bank for a couple of days, got himself relieved and then joined the office of the Presiding Officer, DRT. It, thus, appears to be more of an ego issue rather than any case of service impropriety or illegality. The appellant even took the precaution to write a letter on 25.1.2006 to respondent No.1 Bank for permission to take over charge of the new post of Presiding Officer which post he had to occupy within a period of one month as stated aforesaid from the date of issue of letter dated 20.1.2006. This letter received no response for 11 months, a clear laxity on the part of the respondent No.1 Bank. The appellant, thus, joined the post of the Presiding Officer. No shadow whatsoever can be cast over the conduct of the appellant in this behalf. 15. Now, turning even to the so called technicality of the appellant based on Clause 22(2) of the Pension Regulations, the same requires any interruption in service of a Bank employee to entail forfeiture of his past service. In our view, there was no interruption of service of the Bank employee as would cause such forfeiture. The appellant was on deputation when he was so appointed and took over the new post. The fact that he did not report back to the Bank for a couple of days, got himself relieved and then joined the post cannot be categorized as interruption in service by any stretch of imagination. As noticed above, the appellant had already addressed a communication to respondent No.1 Bank on 25.1.2006 which elicited no response for 11 months. We may also add that even the Ministry of Finance, the parent Ministry of respondent No.1 Bank, brought to the notice of the Bank the inappropriateness of not extending the benefits by commenting, as extracted aforesaid. It has been noted that there was no communication from the Bank after issue of appointment letter dated 20.1.2006 and notification dated 9.2.2006 till the matter was raised with the Ministry for the first time by the Bank after a gap of more than 6 months on 17.7.2006. 16. It is unfortunate that such a stand was sought to be taken by the Bank resting on unjustified ego of someone, causing immense suffering to the appellant.
### Response:
1
### Explanation:
13. We have examined the submissions advanced by learned counsel for the appellant and learned counsel for respondent No.1 in the contours of the aforesaid factual position. In our view, the impugned decisions of the respondent No.1 Bank are wholly unjustified and unsustainable in law even as per the Pension Regulations14. The appellant was on deputation from time to time. Before applying for the post of Presiding officer, DRT, a No Objection Certificate had been obtained from the respondent No.1 Bank. The period of deputation of the appellant was extended keeping in mind the fact that he had already applied for the post and his application was pending consideration. It is during the extended period that the appellant was issued the appointment letter on 20.1.2006. T o say the least, it is a hyper technical view to take that the appellant ought to have joined the respondent No.1 Bank for a couple of days, got himself relieved and then joined the office of the Presiding Officer, DRT. It, thus, appears to be more of an ego issue rather than any case of service impropriety or illegality. The appellant even took the precaution to write a letter on 25.1.2006 to respondent No.1 Bank for permission to take over charge of the new post of Presiding Officer which post he had to occupy within a period of one month as stated aforesaid from the date of issue of letter dated 20.1.2006. This letter received no response for 11 months, a clear laxity on the part of the respondent No.1 Bank. The appellant, thus, joined the post of the Presiding Officer. No shadow whatsoever can be cast over the conduct of the appellant in this behalf15. Now, turning even to the so called technicality of the appellant based on Clause 22(2) of the Pension Regulations, the same requires any interruption in service of a Bank employee to entail forfeiture of his past service. In our view, there was no interruption of service of the Bank employee as would cause such forfeiture. The appellant was on deputation when he was so appointed and took over the new post. The fact that he did not report back to the Bank for a couple of days, got himself relieved and then joined the post cannot be categorized as interruption in service by any stretch of imagination. As noticed above, the appellant had already addressed a communication to respondent No.1 Bank on 25.1.2006 which elicited no response for 11 months. We may also add that even the Ministry of Finance, the parent Ministry of respondent No.1 Bank, brought to the notice of the Bank the inappropriateness of not extending the benefits by commenting, as extracted aforesaid. It has been noted that there was no communication from the Bank after issue of appointment letter dated 20.1.2006 and notification dated 9.2.2006 till the matter was raised with the Ministry for the first time by the Bank after a gap of more than 6 months on 17.7.200616. It is unfortunate that such a stand was sought to be taken by the Bank resting on unjustified ego of someone, causing immense suffering to the appellant.
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The Commissioner Of Income-Tax,Mysoretravancore-Cochin And Vs. The Indo Mercantile Bank, Limited(And Connected Appeal) | clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect. (Vide also 1946 AC 32).11.In the proviso in dispute there are no positive words which would support an interpretation in favour of the disintegration of the head "business" and compel the application of the proviso to the same head, specially keeping in view the object of the main section i.e. S. 24(1) which was to set off loss of profits or gains under one head against income, profits or gains under any other head.12. It was then submitted that in the proviso the words used were "where the loss sustained is a loss of profits or gains" and therefore it necessarily applied to the head "business" in the two respective territories. But in the main enactment itself, i.e. S. 24(1) of the Indian Act the words used are "a loss of profits or gains". The mere fact that the word "income" is not used does not justify the construction that the intention of the Legislature was to restrict the set off of profits and losses arising in Indian States only to business or to modify the mode of computation under S. 10 of the Indian Act. That the use of these words does not circumscribe the proviso to business alone is shown by the difference in the language of the proviso to sub-s. (2) of S. 24 of the Indian Act:-S. 24(2)........ .......... ............. .......... ..........."provided that(a) where the loss sustained is a loss of profits and gains of a business or vocation to which the first proviso to sub-section (1) is applicable, and the profits and gains of that business, profession or vocation are, under the provisions of clause (c) of sub-section (2), of section 14, exempt from tax, such loss shall not be set off except against profits and gains accruing or arising in (an Indian State) from the same business, profession or vocation and exempt from tax under the said provisions." That proviso shows that where the Legislature wanted to restrict the losses and profits or gains to business alone they specifically said so. It is significant that in section 2(13) and (5) of the Indian Act of 1918 corresponding to sections 2(15) and 6 of the Indian Act of 1922 the word used was "income" which in the latter Act was expanded into "income, profits and gains". The Privy Council said in the Commr., of Income-tax v. Shaw Wallace and Co., 59 Ind App 206 at p. 212: (AIR 1932 PC 138 at p. 140) that"the object of the Indian Act is to tax "income" a term which it does not define. It is expanded no doubt into "income, profits and gains" but the expansion is more a matter of words than of substance."It was also so said in Commr. of Income tax, Bengal v. Mercantile Bank of India Ltd., 63 Ind App 457 at p. 471: (AIR 1936 PC 238 at p. 241). See also London Country Council v. Attorney-General, 1901 AC 26.Thus the mere use of the words loss of profits or gains to be set off against profits and gains would not be sufficient to restrict the scope of the proviso to the profits and losses arising under the head business in the two territories i. e., British India and the Indian States.13. On behalf of the Revenue an alternate argument was raised for which support was sought from two decisions of the Allahabad High Court in In Re: Mishrimal Gulabchand, 1950-18 ITR 75 : (AIR 1950 AII 270) and Raghunath Parshad ;. Commr. of Income-tax, (1955) 28 ITR 45. There it was held that S. 10 of the Indian Act had to be read with S. 14(2)(c) and if profits could not be added for the purposes of total income losses sustained also could not be deducted. Counsel for the Revenue did not go to this extent that because profits were exempted losses could not be deducted; his argument was that because before 1939 income was not chargeable unless it was received or accrued in British India therefore business in S. 10 could only mean business in British India.But this argument does not take note of the definition of total income, total world income and chargeability of total income under S. 3 or the provisions of S. 4 where in the case of a resident total income includes income, profits and gains accruing within or without British India. Therefore to say that business in S. 10 means business in British India or business the profits or gains of which are taxable in British India is to ignore the definitions and Ss. 3, 4 and 6. Section 10 of the Indian Act does not distinguish between business in British India and business in an Indian State or so divide business. But then it was said that as the profits or gains of business in an Indian State were exempted from payment of tax in British India business in S. 10 must mean business; in British India. That would be straining the language of S. 10 and would necessitate addition of words in S. 10 which are not there in the section.14. In the course of argument a number of cases of the various High Courts were cited and criticised. We find it unnecessary to refer to them because we have indicated above what is the correct sphere of a proviso and what proviso (i) to S. 24(1) means.15. In our view the question referred to the High Court which is common to the two appeals was rightly answered in favour of the assessee. As to the second question in Civil Appeal No. 260 of 1958 we do not propose to say anything. It will be open to the assessee in that appeal to take such steps in regard to that question as it may be advised. | 0[ds]9. Now we come to S. 24(1). This section was introduced in 1922 before which under the Indian Act of 1918 a loss under one head of income could not be set off against income under another head, the taxability of income arising from each head being separate. By the addition of this section the loss under one head of, profits or gains was allowed to be set off against income, profits and gains under any other head in any assessment year. There was also a provision in S. 24(2) for carrying over the loss after such set off had been effected. Section 24(1) became the subject matter of controversy in the courts.The Privy Council in Arunachalam Chettiar v. Commr. of Income-tax, 63 Ind App 233 at p. 241: (AIR 1936 PC 133 at p. 136) held that this section was meant for a set off of profits arising under different heads and not where profits and losses had to be adjusted if they arose under the same bead. Sir George Rankin said at p. 241 (of Ind App): (at p. 136 oftheir Lordships" opinion, whether a firm is registered or unregistered, partnership does not obstruct or defeat the right of a partner to an adjustment on account of his share of loss in the firm, whether the set off be against other profits under the same head of income within the meaning of S. 6 of the Act or under a different head (in which case only need recourse be had to S. 24, sub-s.the Privy Council emphasised that the object of S. 24(1) was to allow a set off of profits against losses arising under different heads and only in such cases could recourse he had to S. 24(1). In cases where profits and losses arose under the same head they had to be adjusted against each other. This Court in Anglo-French Textile Co. Ltd., v. Commr. of Income-tax, Madras, 1953 SCR 448 at p. 453: (AIR 1958 SC 111 at p. 113) again emphasised that distinction in the followinga set off under section 24(1) can only be claimed when the loss arises under one head and the profit against which it is sought to be set off arises under a different head. When the two arise under the same head, of course the loss can be deducted but that is done under section 10 and not under section 24(1)." (Per Boseit is not disputed that when profit and loss arose under the same head in any place which was not an Indian State recourse had to be had to the provisions of Ss. 7 to 12B and not to any other section. But it was contended on behalf of the Revenue that the first proviso to S. 24(1) of the Indian Act not only affected the generality of the main enactment but also introduce an addendum that where the profits of the business arose in what was British India in the case of the Indian Act or what was Travancore State in the case of the Travancore Act and the losses under the head business were sustained in an Indian State or in the latter case in any other Indian State or British India, these losses could not by virtue of the proviso be deducted from profits made in British India or Travancore State as the case may be. They could only be adjusted against profits arising in an Indian State or in the case of Travancore State in British India or another Indian State. Thus the proviso, it was contended, was a modification of the method of computation under S. 10(2) of the Indian Act for determining profits and gains of the business of any resident. We should be averse to lend any countenance to such a mode of construing a proviso unless the language used expressly or by necessary intendment leads to that conclusion.The per function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. | 0 | 4,489 | 807 | ### Instruction:
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clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect. (Vide also 1946 AC 32).11.In the proviso in dispute there are no positive words which would support an interpretation in favour of the disintegration of the head "business" and compel the application of the proviso to the same head, specially keeping in view the object of the main section i.e. S. 24(1) which was to set off loss of profits or gains under one head against income, profits or gains under any other head.12. It was then submitted that in the proviso the words used were "where the loss sustained is a loss of profits or gains" and therefore it necessarily applied to the head "business" in the two respective territories. But in the main enactment itself, i.e. S. 24(1) of the Indian Act the words used are "a loss of profits or gains". The mere fact that the word "income" is not used does not justify the construction that the intention of the Legislature was to restrict the set off of profits and losses arising in Indian States only to business or to modify the mode of computation under S. 10 of the Indian Act. That the use of these words does not circumscribe the proviso to business alone is shown by the difference in the language of the proviso to sub-s. (2) of S. 24 of the Indian Act:-S. 24(2)........ .......... ............. .......... ..........."provided that(a) where the loss sustained is a loss of profits and gains of a business or vocation to which the first proviso to sub-section (1) is applicable, and the profits and gains of that business, profession or vocation are, under the provisions of clause (c) of sub-section (2), of section 14, exempt from tax, such loss shall not be set off except against profits and gains accruing or arising in (an Indian State) from the same business, profession or vocation and exempt from tax under the said provisions." That proviso shows that where the Legislature wanted to restrict the losses and profits or gains to business alone they specifically said so. It is significant that in section 2(13) and (5) of the Indian Act of 1918 corresponding to sections 2(15) and 6 of the Indian Act of 1922 the word used was "income" which in the latter Act was expanded into "income, profits and gains". The Privy Council said in the Commr., of Income-tax v. Shaw Wallace and Co., 59 Ind App 206 at p. 212: (AIR 1932 PC 138 at p. 140) that"the object of the Indian Act is to tax "income" a term which it does not define. It is expanded no doubt into "income, profits and gains" but the expansion is more a matter of words than of substance."It was also so said in Commr. of Income tax, Bengal v. Mercantile Bank of India Ltd., 63 Ind App 457 at p. 471: (AIR 1936 PC 238 at p. 241). See also London Country Council v. Attorney-General, 1901 AC 26.Thus the mere use of the words loss of profits or gains to be set off against profits and gains would not be sufficient to restrict the scope of the proviso to the profits and losses arising under the head business in the two territories i. e., British India and the Indian States.13. On behalf of the Revenue an alternate argument was raised for which support was sought from two decisions of the Allahabad High Court in In Re: Mishrimal Gulabchand, 1950-18 ITR 75 : (AIR 1950 AII 270) and Raghunath Parshad ;. Commr. of Income-tax, (1955) 28 ITR 45. There it was held that S. 10 of the Indian Act had to be read with S. 14(2)(c) and if profits could not be added for the purposes of total income losses sustained also could not be deducted. Counsel for the Revenue did not go to this extent that because profits were exempted losses could not be deducted; his argument was that because before 1939 income was not chargeable unless it was received or accrued in British India therefore business in S. 10 could only mean business in British India.But this argument does not take note of the definition of total income, total world income and chargeability of total income under S. 3 or the provisions of S. 4 where in the case of a resident total income includes income, profits and gains accruing within or without British India. Therefore to say that business in S. 10 means business in British India or business the profits or gains of which are taxable in British India is to ignore the definitions and Ss. 3, 4 and 6. Section 10 of the Indian Act does not distinguish between business in British India and business in an Indian State or so divide business. But then it was said that as the profits or gains of business in an Indian State were exempted from payment of tax in British India business in S. 10 must mean business; in British India. That would be straining the language of S. 10 and would necessitate addition of words in S. 10 which are not there in the section.14. In the course of argument a number of cases of the various High Courts were cited and criticised. We find it unnecessary to refer to them because we have indicated above what is the correct sphere of a proviso and what proviso (i) to S. 24(1) means.15. In our view the question referred to the High Court which is common to the two appeals was rightly answered in favour of the assessee. As to the second question in Civil Appeal No. 260 of 1958 we do not propose to say anything. It will be open to the assessee in that appeal to take such steps in regard to that question as it may be advised.
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9. Now we come to S. 24(1). This section was introduced in 1922 before which under the Indian Act of 1918 a loss under one head of income could not be set off against income under another head, the taxability of income arising from each head being separate. By the addition of this section the loss under one head of, profits or gains was allowed to be set off against income, profits and gains under any other head in any assessment year. There was also a provision in S. 24(2) for carrying over the loss after such set off had been effected. Section 24(1) became the subject matter of controversy in the courts.The Privy Council in Arunachalam Chettiar v. Commr. of Income-tax, 63 Ind App 233 at p. 241: (AIR 1936 PC 133 at p. 136) held that this section was meant for a set off of profits arising under different heads and not where profits and losses had to be adjusted if they arose under the same bead. Sir George Rankin said at p. 241 (of Ind App): (at p. 136 oftheir Lordships" opinion, whether a firm is registered or unregistered, partnership does not obstruct or defeat the right of a partner to an adjustment on account of his share of loss in the firm, whether the set off be against other profits under the same head of income within the meaning of S. 6 of the Act or under a different head (in which case only need recourse be had to S. 24, sub-s.the Privy Council emphasised that the object of S. 24(1) was to allow a set off of profits against losses arising under different heads and only in such cases could recourse he had to S. 24(1). In cases where profits and losses arose under the same head they had to be adjusted against each other. This Court in Anglo-French Textile Co. Ltd., v. Commr. of Income-tax, Madras, 1953 SCR 448 at p. 453: (AIR 1958 SC 111 at p. 113) again emphasised that distinction in the followinga set off under section 24(1) can only be claimed when the loss arises under one head and the profit against which it is sought to be set off arises under a different head. When the two arise under the same head, of course the loss can be deducted but that is done under section 10 and not under section 24(1)." (Per Boseit is not disputed that when profit and loss arose under the same head in any place which was not an Indian State recourse had to be had to the provisions of Ss. 7 to 12B and not to any other section. But it was contended on behalf of the Revenue that the first proviso to S. 24(1) of the Indian Act not only affected the generality of the main enactment but also introduce an addendum that where the profits of the business arose in what was British India in the case of the Indian Act or what was Travancore State in the case of the Travancore Act and the losses under the head business were sustained in an Indian State or in the latter case in any other Indian State or British India, these losses could not by virtue of the proviso be deducted from profits made in British India or Travancore State as the case may be. They could only be adjusted against profits arising in an Indian State or in the case of Travancore State in British India or another Indian State. Thus the proviso, it was contended, was a modification of the method of computation under S. 10(2) of the Indian Act for determining profits and gains of the business of any resident. We should be averse to lend any countenance to such a mode of construing a proviso unless the language used expressly or by necessary intendment leads to that conclusion.The per function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment.
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Chembra Orchard Produce Ltd Vs. Regional Director Of Co.Affairs | and once such compromise is sanctioned by the Court, it would be binding to all creditors or class of creditors or members or class of members, as the case may be, which would also necessarily mean that even to dissenting creditors or class of creditors or dissenting members or class of members such sanctioned scheme would remain binding. Before sanctioning such a scheme even though approved by a majority of the concerned creditors or members the Court has to be satisfied that the company or any other person moving such an application for sanction under sub-section (2) of Section 391 has disclosed all the relevant matters mentioned in the proviso to sub-section (2) of that section. So far as the meetings of the creditors or members, or their respective classes for whom the Scheme is proposed are concerned, it is enjoined by Section 391(1)(a) that the requisite information as contemplated by the said provision is also required to be placed for consideration of the voters concerned so that the parties concerned before whom the scheme is placed for voting can take an informed and objective decision whether to vote for the scheme or against it. On a conjoint reading of the relevant provisions of Sections 391 and 393 it becomes at once clear that the Company Court which is called upon to sanction such a scheme has not merely to go by the ipse dixit of the majority of the shareholders or creditors or their respective classes who might have voted in favour of the scheme by requisite majority but the Court has to consider the pros and cons of the scheme with a view to finding out whether the scheme is fair, just and reasonable and is not contrary to any provisions of law and it does not violate any public policy. This is implicit in the very concept of compromise or arrangement which is required to receive the imprimatur of a court of law. No court of law would ever countenance any scheme of compromise or arrangement arrived at between the parties and which might be supported by the requisite majority if the Court finds that it is an unconscionable or an illegal scheme or is otherwise unfair or unjust to the class of shareholders or creditors for whom it is meant. Consequently it cannot be said that a Company Court before whom an application is moved for sanctioning such a scheme which might have got the requisite majority support of the creditors or members or any class of them for whom the scheme is mooted by the company concerned, has to act merely as a rubber stamp and must almost automatically put its seal of approval on such a scheme. It is trite to say that once the scheme gets sanctioned by the Court it would bind even the dissenting minority shareholders or creditors. Therefore, the fairness of the scheme qua them also has to be kept in view by the Company Court while putting its seal of approval on the scheme concerned placed for its sanction. It is, of course, true that so far as the Company Court is concerned as per the statutory provisions of Sections 391 and 393 of the Act the question of voidability of the scheme will have to be judged subject to the rider that a scheme sanctioned by majority will remain binding to a dissenting minority of creditors or members, as the case may be, even though they have not consented to such a scheme and to that extent absence of their consent will have no effect on the scheme. It can be postulated that even in case of such a scheme of compromise and arrangement put up for sanction of a Company Court it will have to be seen whether the proposed scheme is lawful and just and fair to the whole class of creditors or members including the dissenting minority to whom it is offered for approval and which has been approved by such class of persons with requisite majority vote." 11. In the case of Sakamari Steel & Alloys Ltd. reported in 51 Company Cases page 266, the learned Single Judge of the Bombay High Court held that Section 391(1) is not a sign-post but a check-post whereat it is a duty of the Court to examine the genuineness and the bonafides of the Scheme for itself. A reading of the above judgment would, therefore, show that at the stage of issuance of Summons for Directions to convene a meeting, though the Company Judge has to apply its mind, prima facie, on the genuineness of the Scheme, basically the entire exercise is to verify whether the numerous conditions prescribed in Rule 69 are satisfied read with Form 33 and Form 34. 12. In the impugned judgment, reliance is placed on the earlier judgment of the Allahabad High Court in the case of Hind Auto Indo Ltd. v. M/s Premier Motors (P) Ltd. reported in AIR 1970 Allahabad 165. From a bare reading of that judgment we find that the said case related to interpretation of Section 394A of the Companies Act with which we are not concerned in this case. Be that as it may, there are observations in the said judgment, with respect, with which we do not agree, both on the interpretation of Rule 67 and 69 on one hand as also on the basis of the practical effect of the interpretation given by the High Court in the present case. If at the threshold stage of directions to convene a meeting hearing is required to be given to the members as held in the impugned judgment the scheme of the Companies (Court) Rules 1959 will become unworkable. For the above reasons, with respect, we disagree with the view expressed by the Allahabad High Court in the case of Hind Auto Indo Ltd. (supra) and we agree with the judgment of the Bombay High Court in the case of Sakamari Steel & Alloys Ltd. (supra).13. | 1[ds]The aforesaid provisions of the Act show that compromise or arrangement can be proposed between a company and its creditors or any class of them or between a company and its members or any class of them. Such a compromise would also take in its sweep any scheme of amalgamation/merger of one company with another. When such a scheme is put forward by a company for the sanction of the Court in the first instance the Court has to direct holding of meetings of creditors or class of creditors or members or class of members who are concerned with such a scheme and once the majority in number representing three-fourths in value of creditors or class of creditors or members or class of members, as the case may be, present or voting either in person or by proxy at such a meeting accord their approval to any compromise or arrangement thus put to vote, and once such compromise is sanctioned by the Court, it would be binding to all creditors or class of creditors or members or class of members, as the case may be, which would also necessarily mean that even to dissenting creditors or class of creditors or dissenting members or class of members such sanctioned scheme would remain binding. Before sanctioning such a scheme even though approved by a majority of the concerned creditors or members the Court has to be satisfied that the company or any other person moving such an application for sanction under sub-section (2) of Section 391 has disclosed all the relevant matters mentioned in the proviso to sub-section (2) of that section. So far as the meetings of the creditors or members, or their respective classes for whom the Scheme is proposed are concerned, it is enjoined by Section 391(1)(a) that the requisite information as contemplated by the said provision is also required to be placed for consideration of the voters concerned so that the parties concerned before whom the scheme is placed for voting can take an informed and objective decision whether to vote for the scheme or against it. On a conjoint reading of the relevant provisions of Sections 391 and 393 it becomes at once clear that the Company Court which is called upon to sanction such a scheme has not merely to go by the ipse dixit of the majority of the shareholders or creditors or their respective classes who might have voted in favour of the scheme by requisite majority but the Court has to consider the pros and cons of the scheme with a view to finding out whether the scheme is fair, just and reasonable and is not contrary to any provisions of law and it does not violate any public policy. This is implicit in the very concept of compromise or arrangement which is required to receive the imprimatur of a court of law. No court of law would ever countenance any scheme of compromise or arrangement arrived at between the parties and which might be supported by the requisite majority if the Court finds that it is an unconscionable or an illegal scheme or is otherwise unfair or unjust to the class of shareholders or creditors for whom it is meant. Consequently it cannot be said that a Company Court before whom an application is moved for sanctioning such a scheme which might have got the requisite majority support of the creditors or members or any class of them for whom the scheme is mooted by the company concerned, has to act merely as a rubber stamp and must almost automatically put its seal of approval on such a scheme. It is trite to say that once the scheme gets sanctioned by the Court it would bind even the dissenting minority shareholders or creditors. Therefore, the fairness of the scheme qua them also has to be kept in view by the Company Court while putting its seal of approval on the scheme concerned placed for its sanction. It is, of course, true that so far as the Company Court is concerned as per the statutory provisions of Sections 391 and 393 of the Act the question of voidability of the scheme will have to be judged subject to the rider that a scheme sanctioned by majority will remain binding to a dissenting minority of creditors or members, as the case may be, even though they have not consented to such a scheme and to that extent absence of their consent will have no effect on the scheme. It can be postulated that even in case of such a scheme of compromise and arrangement put up for sanction of a Company Court it will have to be seen whether the proposed scheme is lawful and just and fair to the whole class of creditors or members including the dissenting minority to whom it is offered for approval and which has been approved by such class of persons with requisite majoritythe case of Sakamari Steel & Alloys Ltd. reported in 51 Company Cases page 266, the learned Single Judge of the Bombay High Court held that Section 391(1) is not a sign-post but a check-post whereat it is a duty of the Court to examine the genuineness and the bonafides of the Scheme forreading of the above judgment would, therefore, show that at the stage of issuance of Summons for Directions to convene a meeting, though the Company Judge has to apply its mind, prima facie, on the genuineness of the Scheme, basically the entire exercise is to verify whether the numerous conditions prescribed in Rule 69 are satisfied read with Form 33 and Formthe impugned judgment, reliance is placed on the earlier judgment of the Allahabad High Court in the case of Hind Auto Indo Ltd. v. M/s Premier Motors (P) Ltd. reported in AIR 1970 Allahabad 165. From a bare reading of that judgment we find that the said case related to interpretation of Section 394A of the Companies Act with which we are not concerned in this case. Be that as it may, there are observations in the said judgment, with respect, with which we do not agree, both on the interpretation of Rule 67 and 69 on one hand as also on the basis of the practical effect of the interpretation given by the High Court in the present case. If at the threshold stage of directions to convene a meeting hearing is required to be given to the members as held in the impugned judgment the scheme of the Companies (Court) Rules 1959 will become unworkable. For the above reasons, with respect, we disagree with the view expressed by the Allahabad High Court in the case of Hind Auto Indo Ltd. (supra) and we agree with the judgment of the Bombay High Court in the case of Sakamari Steel & Alloys Ltd. (supra). | 1 | 5,025 | 1,215 | ### Instruction:
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and once such compromise is sanctioned by the Court, it would be binding to all creditors or class of creditors or members or class of members, as the case may be, which would also necessarily mean that even to dissenting creditors or class of creditors or dissenting members or class of members such sanctioned scheme would remain binding. Before sanctioning such a scheme even though approved by a majority of the concerned creditors or members the Court has to be satisfied that the company or any other person moving such an application for sanction under sub-section (2) of Section 391 has disclosed all the relevant matters mentioned in the proviso to sub-section (2) of that section. So far as the meetings of the creditors or members, or their respective classes for whom the Scheme is proposed are concerned, it is enjoined by Section 391(1)(a) that the requisite information as contemplated by the said provision is also required to be placed for consideration of the voters concerned so that the parties concerned before whom the scheme is placed for voting can take an informed and objective decision whether to vote for the scheme or against it. On a conjoint reading of the relevant provisions of Sections 391 and 393 it becomes at once clear that the Company Court which is called upon to sanction such a scheme has not merely to go by the ipse dixit of the majority of the shareholders or creditors or their respective classes who might have voted in favour of the scheme by requisite majority but the Court has to consider the pros and cons of the scheme with a view to finding out whether the scheme is fair, just and reasonable and is not contrary to any provisions of law and it does not violate any public policy. This is implicit in the very concept of compromise or arrangement which is required to receive the imprimatur of a court of law. No court of law would ever countenance any scheme of compromise or arrangement arrived at between the parties and which might be supported by the requisite majority if the Court finds that it is an unconscionable or an illegal scheme or is otherwise unfair or unjust to the class of shareholders or creditors for whom it is meant. Consequently it cannot be said that a Company Court before whom an application is moved for sanctioning such a scheme which might have got the requisite majority support of the creditors or members or any class of them for whom the scheme is mooted by the company concerned, has to act merely as a rubber stamp and must almost automatically put its seal of approval on such a scheme. It is trite to say that once the scheme gets sanctioned by the Court it would bind even the dissenting minority shareholders or creditors. Therefore, the fairness of the scheme qua them also has to be kept in view by the Company Court while putting its seal of approval on the scheme concerned placed for its sanction. It is, of course, true that so far as the Company Court is concerned as per the statutory provisions of Sections 391 and 393 of the Act the question of voidability of the scheme will have to be judged subject to the rider that a scheme sanctioned by majority will remain binding to a dissenting minority of creditors or members, as the case may be, even though they have not consented to such a scheme and to that extent absence of their consent will have no effect on the scheme. It can be postulated that even in case of such a scheme of compromise and arrangement put up for sanction of a Company Court it will have to be seen whether the proposed scheme is lawful and just and fair to the whole class of creditors or members including the dissenting minority to whom it is offered for approval and which has been approved by such class of persons with requisite majority vote." 11. In the case of Sakamari Steel & Alloys Ltd. reported in 51 Company Cases page 266, the learned Single Judge of the Bombay High Court held that Section 391(1) is not a sign-post but a check-post whereat it is a duty of the Court to examine the genuineness and the bonafides of the Scheme for itself. A reading of the above judgment would, therefore, show that at the stage of issuance of Summons for Directions to convene a meeting, though the Company Judge has to apply its mind, prima facie, on the genuineness of the Scheme, basically the entire exercise is to verify whether the numerous conditions prescribed in Rule 69 are satisfied read with Form 33 and Form 34. 12. In the impugned judgment, reliance is placed on the earlier judgment of the Allahabad High Court in the case of Hind Auto Indo Ltd. v. M/s Premier Motors (P) Ltd. reported in AIR 1970 Allahabad 165. From a bare reading of that judgment we find that the said case related to interpretation of Section 394A of the Companies Act with which we are not concerned in this case. Be that as it may, there are observations in the said judgment, with respect, with which we do not agree, both on the interpretation of Rule 67 and 69 on one hand as also on the basis of the practical effect of the interpretation given by the High Court in the present case. If at the threshold stage of directions to convene a meeting hearing is required to be given to the members as held in the impugned judgment the scheme of the Companies (Court) Rules 1959 will become unworkable. For the above reasons, with respect, we disagree with the view expressed by the Allahabad High Court in the case of Hind Auto Indo Ltd. (supra) and we agree with the judgment of the Bombay High Court in the case of Sakamari Steel & Alloys Ltd. (supra).13.
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their approval to any compromise or arrangement thus put to vote, and once such compromise is sanctioned by the Court, it would be binding to all creditors or class of creditors or members or class of members, as the case may be, which would also necessarily mean that even to dissenting creditors or class of creditors or dissenting members or class of members such sanctioned scheme would remain binding. Before sanctioning such a scheme even though approved by a majority of the concerned creditors or members the Court has to be satisfied that the company or any other person moving such an application for sanction under sub-section (2) of Section 391 has disclosed all the relevant matters mentioned in the proviso to sub-section (2) of that section. So far as the meetings of the creditors or members, or their respective classes for whom the Scheme is proposed are concerned, it is enjoined by Section 391(1)(a) that the requisite information as contemplated by the said provision is also required to be placed for consideration of the voters concerned so that the parties concerned before whom the scheme is placed for voting can take an informed and objective decision whether to vote for the scheme or against it. On a conjoint reading of the relevant provisions of Sections 391 and 393 it becomes at once clear that the Company Court which is called upon to sanction such a scheme has not merely to go by the ipse dixit of the majority of the shareholders or creditors or their respective classes who might have voted in favour of the scheme by requisite majority but the Court has to consider the pros and cons of the scheme with a view to finding out whether the scheme is fair, just and reasonable and is not contrary to any provisions of law and it does not violate any public policy. This is implicit in the very concept of compromise or arrangement which is required to receive the imprimatur of a court of law. No court of law would ever countenance any scheme of compromise or arrangement arrived at between the parties and which might be supported by the requisite majority if the Court finds that it is an unconscionable or an illegal scheme or is otherwise unfair or unjust to the class of shareholders or creditors for whom it is meant. Consequently it cannot be said that a Company Court before whom an application is moved for sanctioning such a scheme which might have got the requisite majority support of the creditors or members or any class of them for whom the scheme is mooted by the company concerned, has to act merely as a rubber stamp and must almost automatically put its seal of approval on such a scheme. It is trite to say that once the scheme gets sanctioned by the Court it would bind even the dissenting minority shareholders or creditors. Therefore, the fairness of the scheme qua them also has to be kept in view by the Company Court while putting its seal of approval on the scheme concerned placed for its sanction. It is, of course, true that so far as the Company Court is concerned as per the statutory provisions of Sections 391 and 393 of the Act the question of voidability of the scheme will have to be judged subject to the rider that a scheme sanctioned by majority will remain binding to a dissenting minority of creditors or members, as the case may be, even though they have not consented to such a scheme and to that extent absence of their consent will have no effect on the scheme. It can be postulated that even in case of such a scheme of compromise and arrangement put up for sanction of a Company Court it will have to be seen whether the proposed scheme is lawful and just and fair to the whole class of creditors or members including the dissenting minority to whom it is offered for approval and which has been approved by such class of persons with requisite majoritythe case of Sakamari Steel & Alloys Ltd. reported in 51 Company Cases page 266, the learned Single Judge of the Bombay High Court held that Section 391(1) is not a sign-post but a check-post whereat it is a duty of the Court to examine the genuineness and the bonafides of the Scheme forreading of the above judgment would, therefore, show that at the stage of issuance of Summons for Directions to convene a meeting, though the Company Judge has to apply its mind, prima facie, on the genuineness of the Scheme, basically the entire exercise is to verify whether the numerous conditions prescribed in Rule 69 are satisfied read with Form 33 and Formthe impugned judgment, reliance is placed on the earlier judgment of the Allahabad High Court in the case of Hind Auto Indo Ltd. v. M/s Premier Motors (P) Ltd. reported in AIR 1970 Allahabad 165. From a bare reading of that judgment we find that the said case related to interpretation of Section 394A of the Companies Act with which we are not concerned in this case. Be that as it may, there are observations in the said judgment, with respect, with which we do not agree, both on the interpretation of Rule 67 and 69 on one hand as also on the basis of the practical effect of the interpretation given by the High Court in the present case. If at the threshold stage of directions to convene a meeting hearing is required to be given to the members as held in the impugned judgment the scheme of the Companies (Court) Rules 1959 will become unworkable. For the above reasons, with respect, we disagree with the view expressed by the Allahabad High Court in the case of Hind Auto Indo Ltd. (supra) and we agree with the judgment of the Bombay High Court in the case of Sakamari Steel & Alloys Ltd. (supra).
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L. N. Mishra Institute of Economic Development and Social Change Patna Vs. State of Bihar and Others | to decide in respect of each member of teaching staff on the merits of each case whether to absorb him in government service or to terminate his service or to allow him to continue on an ad hoc basis for a fixed term or on contract etc. Sub-paragraphs (2) and (3) relate to the members of teaching staff of the concerned institution. Sub-paragraph (4) of paragraph 6 of the Ordinance deals with the cases of other categories of staff of the institution. It provides that the State Government shall similarly determine the term of appointment and other conditions of service of other categories of staff of the institution. It is clear that there is some distinction between sub-paragraph (3) and sub-paragraph (4). While under sub-paragraph (3), the State Government is to decide, among other things, whether the service of a member of teaching staff will be terminated or not, under sub-paragraph (4), the State Government has not been enjoined to decide whether the service of any member of a non-teaching staff will be terminated or not. All that has been directed to be decided by the State Government under sub-paragraph (4) relates to the term of appointment and other conditions of service. 42. Admittedly, the petitioner Dr. Jagadanand Jha was not a member of the teaching staff, but, as noticed already, he was the Registrar of the Institute, which comes within the expression other categories of staff under sub-paragraph (4). It is true that under sub-paragraph (4) it has been provided that sub-paragraphs (2) and (3) shall apply mutatis mutandis but, such application will be limited to the term of appointment and other conditions of service of a member of non-teaching staff of the institution. In other words, the State Government may appoint a committee for the purpose of considering the term of appointment and other conditions of service of the members of the non-teaching staff and the State Government has to decide accordingly. 43. It is thus apparent that the State Government proceeded on the basis that under sub-paragraph (4) of paragraph 6 of the Ordinance, the State Government was to consider the question of termination of the services of members of non-teaching staff as in the cases of members of teaching staff, as provided in sub-paragraph (3) of paragraph 6 of the Ordinance. Even then, we are not impressed with the manner and haste in which the order of termination has been passed. The Ordinance was promulgated on April 19, 1986 and the order of termination was made on April 21, 1986. Although it is alleged that a committee was formed and the State Government terminated the services of the petitioner on the report of the committee, we fail to understand the necessity for such haste and, in the circumstances, it will not be unreasonable to infer that the committee or the State Government had not properly applied its mind before the order of termination of the services of Dr. Jha was made. 44. There can be no dispute that when there is a legislative direction for termination of the services of employees, the compliance with the principles of natural justice may not be read into such direction and, if such terminations are effected without giving the employees concerned an opportunity of being heard, no exception can be taken to the same. But, in the instant case, sub-paragraph (4) of paragraph 6 of the Ordinance does not contain any direction for the termination of services of the members of non-teaching staff. Even in spite of that, if the State Government wants to terminate the services of the petitioner Dr. Jha, it cannot be done without giving him a reasonable opportunity of being heard, for such act on the part of the State Government would be an administrative act. In this connection, we may refer to our decision in K. I. Shephard v. Union of India ([1987] 4 SCC 431 : 1987 SCC (L & S) 438) wherein it has been held that the scheme - making process under Section 45 of the Banking Regulation Act, 1949 being administrative in nature, the rules of natural justice are attracted, as the scheme provided for the termination of services of the employees. It is clear from the provision of sub-paragraph (4) of paragraph 6 that the services of the members of non-teaching staff have been intended to be continued. The petitioner Dr. Jha has been working in the post of Registrar to the Institute for a pretty long time. We are, therefore of the view that his services cannot be terminated without giving him an opportunity of being heard. The learned counsel, appearing on behalf of the respondents, also do not seriously oppose the view that in such circumstances, the petitioner Dr. Jha should have been given an opportunity of being heard. 45. It is alleged in the impugned order of termination that the appointment and promotion of the petitioner were not done as per the rules of the University nor in accordance with the government directions and notifications and his stay in the Institute was not in the interest of the Institute. If the petitioner was given an opportunity to make a representation, he could substantiate that the above findings were erroneous. In any event, as the petitioner was not given an opportunity of being heard, the impugned order of termination of the services of the petitioner cannot be sustained. 46. Before parting with the cases, we may record that both the Society and Dr. Jha have not been able to substantiate the allegation of mala fides against the then Chief Minister of Bihar. Even assuming, although holding to the contrary, that the Chief Minister had acted mala fide, the same cannot vitiate the legislative process in the exercise of which the impugned Act and Ordinances were respectively passed and promulgated. The respondent also have failed to prove the alleged mismanagement of the Institute by the Society or by Dr. Jha. Indeed, they have not pressed the allegation of mismanagement. | 1[ds]14. The contention made on behalf of the petitioner-Society is wholly misconceived. The Ordinances were not promulgated and Act was not passed for the purpose of nationalisation of the Institute only. It is apparent from the provisions of the Ordinances and the Act that the private educational institutions as defined therein are to be taken over for the purpose as mentioned in the Preambles to the Ordinances and the Act in a phased manner. All the institutions which answer the description as given in Section 2(a) of the Act are to be nationalised. It is, therefore, not correct to say that the Institute has been singled out for the purpose of nationalisation15. There can be no doubt that when nationalisation has to be done in a phased manner, all the institutions cannot be taken over at a time. The nationalisation in a phased manner contemplates that by and by the object of nationalisation will be taken over. Therefore, in implementing the nationalisation of private institutions in a phased manner, the legislature has started with the Institute. Therefore, the question of singling out the Institute or treating it as a class by itself does not arise, for as the provision of the Act and the Ordinances go, all the private educational institutions as defined in Section 2(a) of the Act, will be nationalised in a phased mannerIn the circumstances, we are unable to accept the contention made on behalf of the petitioner - Society that the professed object of nationalisation in phases is a mere pretence and a colourable device to single out the Institute or that the facts of exclusion of the three other Institutes impart vice of discrimination to the impugned Act. As has been stated already, the question of discrimination or discriminatory treatment of the Institute does not arise and the contention of the petitioner - Society in this regard is rejectedIn the circumstances, the contention made on behalf of the petitioner - Society that because of the acquisition of the Institute, the Society lost its right of management over the Institute and the Institute being the main or the only activity of the Society, the impugned legislations interfere with the right of the Society to form and continue the association and are, as such, unconstitutional and void under Article 19(1)(c) of the Constitution, is unsound and rejected44. There can be no dispute that when there is a legislative direction for termination of the services of employees, the compliance with the principles of natural justice may not be read into such direction and, if such terminations are effected without giving the employees concerned an opportunity of being heard, no exception can be taken to the same. But, in the instant case, sub-paragraph (4) of paragraph 6 of the Ordinance does not contain any direction for the termination of services of the members of non-teaching staff. Even in spite of that, if the State Government wants to terminate the services of the petitioner Dr. Jha, it cannot be done without giving him a reasonable opportunity of being heard, for such act on the part of the State Government would be an administrative act. In this connection, we may refer to our decision in K. I. Shephard v. Union of India ([1987] 4 SCC 431 : 1987 SCC (L & S) 438) wherein it has been held that the scheme - making process under Section 45 of the Banking Regulation Act, 1949 being administrative in nature, the rules of natural justice are attracted, as the scheme provided for the termination of services of the employees. It is clear from the provision of sub-paragraph (4) of paragraph 6 that the services of the members of non-teaching staff have been intended to be continued. The petitioner Dr. Jha has been working in the post of Registrar to the Institute for a pretty long time. We are, therefore of the view that his services cannot be terminated without giving him an opportunity of being heard. The learned counsel, appearing on behalf of the respondents, also do not seriously oppose the view that in such circumstances, the petitioner Dr. Jha should have been given an opportunity of being heard45. It is alleged in the impugned order of termination that the appointment and promotion of the petitioner were not done as per the rules of the University nor in accordance with the government directions and notifications and his stay in the Institute was not in the interest of the Institute. If the petitioner was given an opportunity to make a representation, he could substantiate that the above findings were erroneous. In any event, as the petitioner was not given an opportunity of being heard, the impugned order of termination of the services of the petitioner cannot be sustained46. Before parting with the cases, we may record that both the Society and Dr. Jha have not been able to substantiate the allegation of mala fides against the then Chief Minister of Bihar. Even assuming, although holding to the contrary, that the Chief Minister had acted mala fide, the same cannot vitiate the legislative process in the exercise of which the impugned Act and Ordinances were respectively passed and promulgated. The respondent also have failed to prove the alleged mismanagement of the Institute by the Society or by Dr. Jha. Indeed, they have not pressed the allegation of mismanagement | 1 | 10,006 | 989 | ### 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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to decide in respect of each member of teaching staff on the merits of each case whether to absorb him in government service or to terminate his service or to allow him to continue on an ad hoc basis for a fixed term or on contract etc. Sub-paragraphs (2) and (3) relate to the members of teaching staff of the concerned institution. Sub-paragraph (4) of paragraph 6 of the Ordinance deals with the cases of other categories of staff of the institution. It provides that the State Government shall similarly determine the term of appointment and other conditions of service of other categories of staff of the institution. It is clear that there is some distinction between sub-paragraph (3) and sub-paragraph (4). While under sub-paragraph (3), the State Government is to decide, among other things, whether the service of a member of teaching staff will be terminated or not, under sub-paragraph (4), the State Government has not been enjoined to decide whether the service of any member of a non-teaching staff will be terminated or not. All that has been directed to be decided by the State Government under sub-paragraph (4) relates to the term of appointment and other conditions of service. 42. Admittedly, the petitioner Dr. Jagadanand Jha was not a member of the teaching staff, but, as noticed already, he was the Registrar of the Institute, which comes within the expression other categories of staff under sub-paragraph (4). It is true that under sub-paragraph (4) it has been provided that sub-paragraphs (2) and (3) shall apply mutatis mutandis but, such application will be limited to the term of appointment and other conditions of service of a member of non-teaching staff of the institution. In other words, the State Government may appoint a committee for the purpose of considering the term of appointment and other conditions of service of the members of the non-teaching staff and the State Government has to decide accordingly. 43. It is thus apparent that the State Government proceeded on the basis that under sub-paragraph (4) of paragraph 6 of the Ordinance, the State Government was to consider the question of termination of the services of members of non-teaching staff as in the cases of members of teaching staff, as provided in sub-paragraph (3) of paragraph 6 of the Ordinance. Even then, we are not impressed with the manner and haste in which the order of termination has been passed. The Ordinance was promulgated on April 19, 1986 and the order of termination was made on April 21, 1986. Although it is alleged that a committee was formed and the State Government terminated the services of the petitioner on the report of the committee, we fail to understand the necessity for such haste and, in the circumstances, it will not be unreasonable to infer that the committee or the State Government had not properly applied its mind before the order of termination of the services of Dr. Jha was made. 44. There can be no dispute that when there is a legislative direction for termination of the services of employees, the compliance with the principles of natural justice may not be read into such direction and, if such terminations are effected without giving the employees concerned an opportunity of being heard, no exception can be taken to the same. But, in the instant case, sub-paragraph (4) of paragraph 6 of the Ordinance does not contain any direction for the termination of services of the members of non-teaching staff. Even in spite of that, if the State Government wants to terminate the services of the petitioner Dr. Jha, it cannot be done without giving him a reasonable opportunity of being heard, for such act on the part of the State Government would be an administrative act. In this connection, we may refer to our decision in K. I. Shephard v. Union of India ([1987] 4 SCC 431 : 1987 SCC (L & S) 438) wherein it has been held that the scheme - making process under Section 45 of the Banking Regulation Act, 1949 being administrative in nature, the rules of natural justice are attracted, as the scheme provided for the termination of services of the employees. It is clear from the provision of sub-paragraph (4) of paragraph 6 that the services of the members of non-teaching staff have been intended to be continued. The petitioner Dr. Jha has been working in the post of Registrar to the Institute for a pretty long time. We are, therefore of the view that his services cannot be terminated without giving him an opportunity of being heard. The learned counsel, appearing on behalf of the respondents, also do not seriously oppose the view that in such circumstances, the petitioner Dr. Jha should have been given an opportunity of being heard. 45. It is alleged in the impugned order of termination that the appointment and promotion of the petitioner were not done as per the rules of the University nor in accordance with the government directions and notifications and his stay in the Institute was not in the interest of the Institute. If the petitioner was given an opportunity to make a representation, he could substantiate that the above findings were erroneous. In any event, as the petitioner was not given an opportunity of being heard, the impugned order of termination of the services of the petitioner cannot be sustained. 46. Before parting with the cases, we may record that both the Society and Dr. Jha have not been able to substantiate the allegation of mala fides against the then Chief Minister of Bihar. Even assuming, although holding to the contrary, that the Chief Minister had acted mala fide, the same cannot vitiate the legislative process in the exercise of which the impugned Act and Ordinances were respectively passed and promulgated. The respondent also have failed to prove the alleged mismanagement of the Institute by the Society or by Dr. Jha. Indeed, they have not pressed the allegation of mismanagement.
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14. The contention made on behalf of the petitioner-Society is wholly misconceived. The Ordinances were not promulgated and Act was not passed for the purpose of nationalisation of the Institute only. It is apparent from the provisions of the Ordinances and the Act that the private educational institutions as defined therein are to be taken over for the purpose as mentioned in the Preambles to the Ordinances and the Act in a phased manner. All the institutions which answer the description as given in Section 2(a) of the Act are to be nationalised. It is, therefore, not correct to say that the Institute has been singled out for the purpose of nationalisation15. There can be no doubt that when nationalisation has to be done in a phased manner, all the institutions cannot be taken over at a time. The nationalisation in a phased manner contemplates that by and by the object of nationalisation will be taken over. Therefore, in implementing the nationalisation of private institutions in a phased manner, the legislature has started with the Institute. Therefore, the question of singling out the Institute or treating it as a class by itself does not arise, for as the provision of the Act and the Ordinances go, all the private educational institutions as defined in Section 2(a) of the Act, will be nationalised in a phased mannerIn the circumstances, we are unable to accept the contention made on behalf of the petitioner - Society that the professed object of nationalisation in phases is a mere pretence and a colourable device to single out the Institute or that the facts of exclusion of the three other Institutes impart vice of discrimination to the impugned Act. As has been stated already, the question of discrimination or discriminatory treatment of the Institute does not arise and the contention of the petitioner - Society in this regard is rejectedIn the circumstances, the contention made on behalf of the petitioner - Society that because of the acquisition of the Institute, the Society lost its right of management over the Institute and the Institute being the main or the only activity of the Society, the impugned legislations interfere with the right of the Society to form and continue the association and are, as such, unconstitutional and void under Article 19(1)(c) of the Constitution, is unsound and rejected44. There can be no dispute that when there is a legislative direction for termination of the services of employees, the compliance with the principles of natural justice may not be read into such direction and, if such terminations are effected without giving the employees concerned an opportunity of being heard, no exception can be taken to the same. But, in the instant case, sub-paragraph (4) of paragraph 6 of the Ordinance does not contain any direction for the termination of services of the members of non-teaching staff. Even in spite of that, if the State Government wants to terminate the services of the petitioner Dr. Jha, it cannot be done without giving him a reasonable opportunity of being heard, for such act on the part of the State Government would be an administrative act. In this connection, we may refer to our decision in K. I. Shephard v. Union of India ([1987] 4 SCC 431 : 1987 SCC (L & S) 438) wherein it has been held that the scheme - making process under Section 45 of the Banking Regulation Act, 1949 being administrative in nature, the rules of natural justice are attracted, as the scheme provided for the termination of services of the employees. It is clear from the provision of sub-paragraph (4) of paragraph 6 that the services of the members of non-teaching staff have been intended to be continued. The petitioner Dr. Jha has been working in the post of Registrar to the Institute for a pretty long time. We are, therefore of the view that his services cannot be terminated without giving him an opportunity of being heard. The learned counsel, appearing on behalf of the respondents, also do not seriously oppose the view that in such circumstances, the petitioner Dr. Jha should have been given an opportunity of being heard45. It is alleged in the impugned order of termination that the appointment and promotion of the petitioner were not done as per the rules of the University nor in accordance with the government directions and notifications and his stay in the Institute was not in the interest of the Institute. If the petitioner was given an opportunity to make a representation, he could substantiate that the above findings were erroneous. In any event, as the petitioner was not given an opportunity of being heard, the impugned order of termination of the services of the petitioner cannot be sustained46. Before parting with the cases, we may record that both the Society and Dr. Jha have not been able to substantiate the allegation of mala fides against the then Chief Minister of Bihar. Even assuming, although holding to the contrary, that the Chief Minister had acted mala fide, the same cannot vitiate the legislative process in the exercise of which the impugned Act and Ordinances were respectively passed and promulgated. The respondent also have failed to prove the alleged mismanagement of the Institute by the Society or by Dr. Jha. Indeed, they have not pressed the allegation of mismanagement
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Dharam Pal Vs. State of Haryana | is contradiction between the ocular testimony of PW- 6 and the medical evidence. It is contended that Asphyxia is not possible without any mark of violence and there is no external injury found on the body of the deceased contrary to the evidence of PW-6 who stated that the deceased was hit on the back side of his head with the butt of a rifle.8. There is a detailed discussion in the judgments of the Courts below about the illegal detention of PW-6 by the police and the continuous threat held out by the accused to PW-6. The Courts below relied upon the evidence of PW-6, being conscious of the fact that PW-6 could not have stated anything against the accused until the investigation was handed over to the CBI. We are unable to accept the submissions of learned Senior Counsel for the accused that the evidence of PW-6 is unreliable. It is no doubt true that PW-6 revealed the complicity of A1 to A-3 before PW-71 only on 23.01.1998 though the incident was on 10.09.1996. It is clear from the evidence on record that PW-6 was spared by A1 to A-3 only on an assurance that he would not reveal about the incident to anybody. It was only after the CBI took up the investigation that he mustered strength to approach the Investigating Officer PW-71 and revealed the facts pertaining to the incident dated 10.09.1996. In this background, the evidence of PW-6 cannot be eschewed from consideration only on the ground that there was delay in reporting his version to the Investigating Officer. We reject the submission of learned Senior Counsel for the Appellants that the evidence of PW-6 does not merit favorable consideration.9. As per the postmortem report, the cause of death is Asphyxia. PW-25, Dr. P.S. Parihar, opined that the death might have been caused because of obstruction of air into mouth and nose by a cloth or pillow being put on his nostrils or mouth. PW-6 deposed in his testimony that the deceased was hit by a rifle butt on the back of his head by A-2 due to which he fell down and become unconscious. The medical evidence shows that there was no external injury on the head of the deceased. Though it appears at the first blush that there is a contradiction between the oral testimony of PW-6 and the medical evidence, on a deeper scrutiny it is clear that there is none. PW-6 deposed about the incident to the extent he was aware i.e. the blow given by A-2, the deceased falling down and becoming unconscious. Thereafter, PW-6 was taken away by the accused and was unaware about the events that took place later. He did not state anything about the deceased losing his life. According to medical opinion the death was due to Asphyxia. Dr. P.S.Parihar (PW-25) deposed that the death might have been caused by obstruction of air into the mouth and nose due to a cloth/pillow being put on the nostrils and/or mouth. Therefore, there is no variation between the oral and medical evidence.10. The following circumstances would unerringly point to the guilt of Accused:A. It is clear from the evidence on record that A-1 to A-3 tried to cover up their crime by filing a closure report to the effect that the death of the deceased was due to an accident.B. PW-6 stated in his evidence that A-1 to A-3 caused an injury to the deceased and thereafter dragged and dumped him into the bushes besides the road. They initially took PW-6 to the outpost at Anangpur Chowk and later to Surajkund police station where he was illegally detained till 15.09.1996.C. PW-2, Kanwal Nain Arora, the father of the deceased along with PW-10, Ashok Kumar and PW-12, Harish Arora were frantically searching for the deceased from the early hours on 11.09.1996 on Surajkund - Faridabad road. They found the broken pieces of glass purchased by the deceased on the Surajkund-Faridabad road. There was no trace of the body till it was found on the same road at 5:30 pm on 11.09.1996.D. The police had blocked the road between 02:00 pm to 04:00 pm for vehicle or traffic, presumably to enable the accused to place the body at the spot where it was found.E. The inquest was not done at the spot but at the police station by A-4. The blood stained earth allegedly removed from the spot where the body was lying did not match with the blood group of the deceased. There was blood on the face of the deceased and his clothes, which also did not match his blood group.F. It has also come out in evidence that it rained in the afternoon on 11.09.1996 but the body was found to be dry.G. Manipulation of the investigation by A-4 to A-6 in order to shield A-1 to A-3 from punishment for their crime.H. The deceased being unconscious and lying on the road one km. from Anangpur Chowk at 11:30 pm on 10.09.1996 was to the exclusive knowledge of A-1 to A-3. The absence of any explanation forthcoming from the accused as to the circumstances in which the death occurred, raises a presumption against them.I. The disappearance of the body during the day time until it was found at a place different from the site of the incident at 05:30 p.m. would clearly show that A-1 to A-3 were responsible for the removal of the body in the night and placing the body at the site where it was found around 5:30 pm on 11.09.1996.11. All the above circumstances would show that A-1 to A-3 are responsible for the death, being the only persons having knowledge about the deceased lying at the spot where he was injured at 11:30 pm on 10.09.1996. Complicity of A-4 to A6 has also been sufficiently proved. On the basis of the oral testimony of PW-6 and the strong circumstances which point to their guilt, we uphold the judgments of the Courts below. | 0[ds]7. It is no moreon of evidence is not required in a case where conviction has been confirmed by the High Court.There is a detailed discussion in the judgments of the Courts below about the illegal detention ofby the police and the continuous threat held out by the accused toThe Courts below relied upon the evidence ofbeing conscious of the fact thatcould not have stated anything against the accused until the investigation was handed over to the CBI. We are unable to accept the submissions of learned Senior Counsel for the accused that the evidence ofis unreliable. It is no doubt true thatrevealed the complicity of A1 to71 only on 23.01.1998 though the incident was on 10.09.1996. It is clear from the evidence on record thatwas spared by A1 toonly on an assurance that he would not reveal about the incident to anybody. It was only after the CBI took up the investigation that he mustered strength to approach the Investigating Officerand revealed the facts pertaining to the incident dated 10.09.1996. In this background, the evidence ofcannot be eschewed from consideration only on the ground that there was delay in reporting his version to the Investigating Officer. We reject the submission of learned Senior Counsel for the Appellants that the evidence ofdoes not merit favorablemedical evidence shows that there was no external injury on the head of the deceased. Though it appears at the first blush that there is a contradiction between the oral testimony ofand the medical evidence, on a deeper scrutiny it is clear that there is none.deposed about the incident to the extent he was aware i.e. the blow given bythe deceased falling down and becoming unconscious. Thereafter,was taken away by the accused and was unaware about the events that took place later. He did not state anything about the deceased losing his life. According to medical opinion the death was due to Asphyxia. Dr. P.S.Parihardeposed that the death might have been caused by obstruction of air into the mouth and nose due to a cloth/pillow being put on the nostrils and/or mouth. Therefore, there is no variation between the oral and medical evidence.10. The following circumstances would unerringly point to the guilt ofIt is clear from the evidence on record thatA1 to A3tried to cover up their crime by filing a closure report to the effect that the death of the deceased was due to an accident.B.stated in his evidence thatA1 to A3caused an injury to the deceased and thereafter dragged and dumped him into the bushes besides the road. They initially tookto the outpost at Anangpur Chowk and later to Surajkund police station where he was illegally detained till 15.09.1996.C.Kanwal Nain Arora, the father of the deceased along withAshok Kumar andHarish Arora were frantically searching for the deceased from the early hours on 11.09.1996 on SurajkundFaridabad road. They found the broken pieces of glass purchased by the deceased on theroad. There was no trace of the body till it was found on the same road at 5:30 pm on 11.09.1996.D. The police had blocked the road between 02:00 pm to 04:00 pm for vehicle or traffic, presumably to enable the accused to place the body at the spot where it was found.E. The inquest was not done at the spot but at the police station byThe blood stained earth allegedly removed from the spot where the body was lying did not match with the blood group of the deceased. There was blood on the face of the deceased and his clothes, which also did not match his blood group.F. It has also come out in evidence that it rained in the afternoon on 11.09.1996 but the body was found to be dry.G. Manipulation of the investigation byA4 to A6in order to shieldA1 to A3their crime.H. The deceased being unconscious and lying on the road one km. from Anangpur Chowk at 11:30 pm on 10.09.1996 was to the exclusive knowledge of3. The absence of any explanation forthcoming from the accused as to the circumstances in which the death occurred, raises a presumption against them.I. The disappearance of the body during the day time until it was found at a place different from the site of the incident at 05:30 p.m. would clearly show thatA1 to A3were responsible for the removal of the body in the night and placing the body at the site where it was found around 5:30 pm on 11.09.1996.All the above circumstances would show thatA1 to A3are responsible for the death, being the only persons having knowledge about the deceased lying at the spot where he was injured at 11:30 pm on 10.09.1996. Complicity ofA4 to A6has also been sufficiently proved. On the basis of the oral testimony ofand the strong circumstances which point to their guilt, we uphold the judgments of the Courts below. | 0 | 2,734 | 847 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
is contradiction between the ocular testimony of PW- 6 and the medical evidence. It is contended that Asphyxia is not possible without any mark of violence and there is no external injury found on the body of the deceased contrary to the evidence of PW-6 who stated that the deceased was hit on the back side of his head with the butt of a rifle.8. There is a detailed discussion in the judgments of the Courts below about the illegal detention of PW-6 by the police and the continuous threat held out by the accused to PW-6. The Courts below relied upon the evidence of PW-6, being conscious of the fact that PW-6 could not have stated anything against the accused until the investigation was handed over to the CBI. We are unable to accept the submissions of learned Senior Counsel for the accused that the evidence of PW-6 is unreliable. It is no doubt true that PW-6 revealed the complicity of A1 to A-3 before PW-71 only on 23.01.1998 though the incident was on 10.09.1996. It is clear from the evidence on record that PW-6 was spared by A1 to A-3 only on an assurance that he would not reveal about the incident to anybody. It was only after the CBI took up the investigation that he mustered strength to approach the Investigating Officer PW-71 and revealed the facts pertaining to the incident dated 10.09.1996. In this background, the evidence of PW-6 cannot be eschewed from consideration only on the ground that there was delay in reporting his version to the Investigating Officer. We reject the submission of learned Senior Counsel for the Appellants that the evidence of PW-6 does not merit favorable consideration.9. As per the postmortem report, the cause of death is Asphyxia. PW-25, Dr. P.S. Parihar, opined that the death might have been caused because of obstruction of air into mouth and nose by a cloth or pillow being put on his nostrils or mouth. PW-6 deposed in his testimony that the deceased was hit by a rifle butt on the back of his head by A-2 due to which he fell down and become unconscious. The medical evidence shows that there was no external injury on the head of the deceased. Though it appears at the first blush that there is a contradiction between the oral testimony of PW-6 and the medical evidence, on a deeper scrutiny it is clear that there is none. PW-6 deposed about the incident to the extent he was aware i.e. the blow given by A-2, the deceased falling down and becoming unconscious. Thereafter, PW-6 was taken away by the accused and was unaware about the events that took place later. He did not state anything about the deceased losing his life. According to medical opinion the death was due to Asphyxia. Dr. P.S.Parihar (PW-25) deposed that the death might have been caused by obstruction of air into the mouth and nose due to a cloth/pillow being put on the nostrils and/or mouth. Therefore, there is no variation between the oral and medical evidence.10. The following circumstances would unerringly point to the guilt of Accused:A. It is clear from the evidence on record that A-1 to A-3 tried to cover up their crime by filing a closure report to the effect that the death of the deceased was due to an accident.B. PW-6 stated in his evidence that A-1 to A-3 caused an injury to the deceased and thereafter dragged and dumped him into the bushes besides the road. They initially took PW-6 to the outpost at Anangpur Chowk and later to Surajkund police station where he was illegally detained till 15.09.1996.C. PW-2, Kanwal Nain Arora, the father of the deceased along with PW-10, Ashok Kumar and PW-12, Harish Arora were frantically searching for the deceased from the early hours on 11.09.1996 on Surajkund - Faridabad road. They found the broken pieces of glass purchased by the deceased on the Surajkund-Faridabad road. There was no trace of the body till it was found on the same road at 5:30 pm on 11.09.1996.D. The police had blocked the road between 02:00 pm to 04:00 pm for vehicle or traffic, presumably to enable the accused to place the body at the spot where it was found.E. The inquest was not done at the spot but at the police station by A-4. The blood stained earth allegedly removed from the spot where the body was lying did not match with the blood group of the deceased. There was blood on the face of the deceased and his clothes, which also did not match his blood group.F. It has also come out in evidence that it rained in the afternoon on 11.09.1996 but the body was found to be dry.G. Manipulation of the investigation by A-4 to A-6 in order to shield A-1 to A-3 from punishment for their crime.H. The deceased being unconscious and lying on the road one km. from Anangpur Chowk at 11:30 pm on 10.09.1996 was to the exclusive knowledge of A-1 to A-3. The absence of any explanation forthcoming from the accused as to the circumstances in which the death occurred, raises a presumption against them.I. The disappearance of the body during the day time until it was found at a place different from the site of the incident at 05:30 p.m. would clearly show that A-1 to A-3 were responsible for the removal of the body in the night and placing the body at the site where it was found around 5:30 pm on 11.09.1996.11. All the above circumstances would show that A-1 to A-3 are responsible for the death, being the only persons having knowledge about the deceased lying at the spot where he was injured at 11:30 pm on 10.09.1996. Complicity of A-4 to A6 has also been sufficiently proved. On the basis of the oral testimony of PW-6 and the strong circumstances which point to their guilt, we uphold the judgments of the Courts below.
### Response:
0
### Explanation:
7. It is no moreon of evidence is not required in a case where conviction has been confirmed by the High Court.There is a detailed discussion in the judgments of the Courts below about the illegal detention ofby the police and the continuous threat held out by the accused toThe Courts below relied upon the evidence ofbeing conscious of the fact thatcould not have stated anything against the accused until the investigation was handed over to the CBI. We are unable to accept the submissions of learned Senior Counsel for the accused that the evidence ofis unreliable. It is no doubt true thatrevealed the complicity of A1 to71 only on 23.01.1998 though the incident was on 10.09.1996. It is clear from the evidence on record thatwas spared by A1 toonly on an assurance that he would not reveal about the incident to anybody. It was only after the CBI took up the investigation that he mustered strength to approach the Investigating Officerand revealed the facts pertaining to the incident dated 10.09.1996. In this background, the evidence ofcannot be eschewed from consideration only on the ground that there was delay in reporting his version to the Investigating Officer. We reject the submission of learned Senior Counsel for the Appellants that the evidence ofdoes not merit favorablemedical evidence shows that there was no external injury on the head of the deceased. Though it appears at the first blush that there is a contradiction between the oral testimony ofand the medical evidence, on a deeper scrutiny it is clear that there is none.deposed about the incident to the extent he was aware i.e. the blow given bythe deceased falling down and becoming unconscious. Thereafter,was taken away by the accused and was unaware about the events that took place later. He did not state anything about the deceased losing his life. According to medical opinion the death was due to Asphyxia. Dr. P.S.Parihardeposed that the death might have been caused by obstruction of air into the mouth and nose due to a cloth/pillow being put on the nostrils and/or mouth. Therefore, there is no variation between the oral and medical evidence.10. The following circumstances would unerringly point to the guilt ofIt is clear from the evidence on record thatA1 to A3tried to cover up their crime by filing a closure report to the effect that the death of the deceased was due to an accident.B.stated in his evidence thatA1 to A3caused an injury to the deceased and thereafter dragged and dumped him into the bushes besides the road. They initially tookto the outpost at Anangpur Chowk and later to Surajkund police station where he was illegally detained till 15.09.1996.C.Kanwal Nain Arora, the father of the deceased along withAshok Kumar andHarish Arora were frantically searching for the deceased from the early hours on 11.09.1996 on SurajkundFaridabad road. They found the broken pieces of glass purchased by the deceased on theroad. There was no trace of the body till it was found on the same road at 5:30 pm on 11.09.1996.D. The police had blocked the road between 02:00 pm to 04:00 pm for vehicle or traffic, presumably to enable the accused to place the body at the spot where it was found.E. The inquest was not done at the spot but at the police station byThe blood stained earth allegedly removed from the spot where the body was lying did not match with the blood group of the deceased. There was blood on the face of the deceased and his clothes, which also did not match his blood group.F. It has also come out in evidence that it rained in the afternoon on 11.09.1996 but the body was found to be dry.G. Manipulation of the investigation byA4 to A6in order to shieldA1 to A3their crime.H. The deceased being unconscious and lying on the road one km. from Anangpur Chowk at 11:30 pm on 10.09.1996 was to the exclusive knowledge of3. The absence of any explanation forthcoming from the accused as to the circumstances in which the death occurred, raises a presumption against them.I. The disappearance of the body during the day time until it was found at a place different from the site of the incident at 05:30 p.m. would clearly show thatA1 to A3were responsible for the removal of the body in the night and placing the body at the site where it was found around 5:30 pm on 11.09.1996.All the above circumstances would show thatA1 to A3are responsible for the death, being the only persons having knowledge about the deceased lying at the spot where he was injured at 11:30 pm on 10.09.1996. Complicity ofA4 to A6has also been sufficiently proved. On the basis of the oral testimony ofand the strong circumstances which point to their guilt, we uphold the judgments of the Courts below.
|
SHAMANNA Vs. THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD | (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal. (xi) The provisions contained in sub-section (4) with the proviso there under and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims, (Underlining added) 7. As per the decision in Swaran Singh case, onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, pay and recover can be ordered in case of third party risks. The Tribunal is required to consider as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, does not fulfill the requirements of law or not will have to be determined in each case. 8. The Supreme Court considered the decision of Swaran Singh case in subsequent decision in National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 , wherein this Court held that the decision in Swaran Singh case has no application to cases other than third party risks and in case of third party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured The same principle was reiterated in Prem Kumari v. Prahlad Dev and others (2008) 3 SCC 193. 9. For the sake of completion, we may refer to few judgments where the breach of policy conditions was fundamental and the Supreme Court taking contrary view that the insurance companies were not liable to pay the compensation. In National Insurance Co., Ltd. v. Bommithi Subbhayamma and others, (2005) 12 SCC 243 , the Supreme Court reversed the judgment of Andhra Pradesh High Court in making the insurance company liable for payment of compensation in respect of gratuitous passengers carried in the goods vehicle. 10. In Oriental Insurance Co. Ltd. v. Brij Mohan and others (2007) 7 SCC 56 , the claimant was travelling in the trolley attached to tractor carrying earth to brick kiln. It was found that the tractor and the trolley were not used for agricultural works, the only purpose for which the tractor was insured, when the claimant sustained the injuries. The Supreme Court though held that the insurance company is not liable to pay compensation, however, invoked the power vested in the Supreme Court under Article 142 of the Constitution of India in directing the insurance company to satisfy the award by paying compensation to the insured/claimant and realise the same from the owner of the tractor. 11. In the present case, to deny the benefit of pay and recover, what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two-Judge Bench in National Insurance Co. Ltd. v. Parvathneni and another (2009) 8 SCC 785 which doubted the correctness of the decisions which in exercise of jurisdiction under Article 142 of the Constitution of India directing insurance company to pay the compensation amount even though insurance company has no liability to pay. In Parvathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and that if the insurance company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle The above reference in Parvathneni case has been disposed of on 17.09.2013 by the three-Judges Bench keeping the questions of law open to be decided in an appropriate case. 12. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored. 13. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan and others (2004) 13 SCC 224 where this Court held that ….that for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. | 1[ds]7. As per the decision in Swaran Singh case, onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, pay and recover can be ordered in case of third party risks. The Tribunal is required to consider as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, does not fulfill the requirements of law or not will have to be determined in each case9. For the sake of completion, we may refer to few judgments where the breach of policy conditions was fundamental and the Supreme Court taking contrary view that the insurance companies were not liable to pay the compensation. In National Insurance Co., Ltd. v. Bommithi Subbhayamma and others, (2005) 12 SCC 243 , the Supreme Court reversed the judgment of Andhra Pradesh High Court in making the insurance company liable for payment of compensation in respect of gratuitous passengers carried in the goods vehicle10. In Oriental Insurance Co. Ltd. v. Brij Mohan and others (2007) 7 SCC 56 , the claimant was travelling in the trolley attached to tractor carrying earth to brick kiln. It was found that the tractor and the trolley were not used for agricultural works, the only purpose for which the tractor was insured, when the claimant sustained the injuries. The Supreme Court though held that the insurance company is not liable to pay compensation, however, invoked the power vested in the Supreme Court under Article 142 of the Constitution of India in directing the insurance company to satisfy the award by paying compensation to the insured/claimant and realise the same from the owner of the tractor11. In the present case, to deny the benefit of pay and recover, what seems to have substantially weighed with the High Court is the reference to larger Bench made by thee Bench in National Insurance Co. Ltd. v. Parvathneni and another (2009) 8 SCC 785 which doubted the correctness of the decisions which in exercise of jurisdiction under Article 142 of the Constitution of India directing insurance company to pay the compensation amount even though insurance company has no liability to pay. In Parvathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and thatif the insurance company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicleThe above reference in Parvathneni case has been disposed of on 17.09.2013 by thes Bench keeping the questions of law open to be decided in an appropriate case12. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored13. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan and others (2004) 13 SCC 224 where this Court held that….that for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. | 1 | 2,751 | 818 | ### 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:
(3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal. (xi) The provisions contained in sub-section (4) with the proviso there under and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims, (Underlining added) 7. As per the decision in Swaran Singh case, onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, pay and recover can be ordered in case of third party risks. The Tribunal is required to consider as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, does not fulfill the requirements of law or not will have to be determined in each case. 8. The Supreme Court considered the decision of Swaran Singh case in subsequent decision in National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 , wherein this Court held that the decision in Swaran Singh case has no application to cases other than third party risks and in case of third party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured The same principle was reiterated in Prem Kumari v. Prahlad Dev and others (2008) 3 SCC 193. 9. For the sake of completion, we may refer to few judgments where the breach of policy conditions was fundamental and the Supreme Court taking contrary view that the insurance companies were not liable to pay the compensation. In National Insurance Co., Ltd. v. Bommithi Subbhayamma and others, (2005) 12 SCC 243 , the Supreme Court reversed the judgment of Andhra Pradesh High Court in making the insurance company liable for payment of compensation in respect of gratuitous passengers carried in the goods vehicle. 10. In Oriental Insurance Co. Ltd. v. Brij Mohan and others (2007) 7 SCC 56 , the claimant was travelling in the trolley attached to tractor carrying earth to brick kiln. It was found that the tractor and the trolley were not used for agricultural works, the only purpose for which the tractor was insured, when the claimant sustained the injuries. The Supreme Court though held that the insurance company is not liable to pay compensation, however, invoked the power vested in the Supreme Court under Article 142 of the Constitution of India in directing the insurance company to satisfy the award by paying compensation to the insured/claimant and realise the same from the owner of the tractor. 11. In the present case, to deny the benefit of pay and recover, what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two-Judge Bench in National Insurance Co. Ltd. v. Parvathneni and another (2009) 8 SCC 785 which doubted the correctness of the decisions which in exercise of jurisdiction under Article 142 of the Constitution of India directing insurance company to pay the compensation amount even though insurance company has no liability to pay. In Parvathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and that if the insurance company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle The above reference in Parvathneni case has been disposed of on 17.09.2013 by the three-Judges Bench keeping the questions of law open to be decided in an appropriate case. 12. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored. 13. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan and others (2004) 13 SCC 224 where this Court held that ….that for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer.
### Response:
1
### Explanation:
7. As per the decision in Swaran Singh case, onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, pay and recover can be ordered in case of third party risks. The Tribunal is required to consider as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, does not fulfill the requirements of law or not will have to be determined in each case9. For the sake of completion, we may refer to few judgments where the breach of policy conditions was fundamental and the Supreme Court taking contrary view that the insurance companies were not liable to pay the compensation. In National Insurance Co., Ltd. v. Bommithi Subbhayamma and others, (2005) 12 SCC 243 , the Supreme Court reversed the judgment of Andhra Pradesh High Court in making the insurance company liable for payment of compensation in respect of gratuitous passengers carried in the goods vehicle10. In Oriental Insurance Co. Ltd. v. Brij Mohan and others (2007) 7 SCC 56 , the claimant was travelling in the trolley attached to tractor carrying earth to brick kiln. It was found that the tractor and the trolley were not used for agricultural works, the only purpose for which the tractor was insured, when the claimant sustained the injuries. The Supreme Court though held that the insurance company is not liable to pay compensation, however, invoked the power vested in the Supreme Court under Article 142 of the Constitution of India in directing the insurance company to satisfy the award by paying compensation to the insured/claimant and realise the same from the owner of the tractor11. In the present case, to deny the benefit of pay and recover, what seems to have substantially weighed with the High Court is the reference to larger Bench made by thee Bench in National Insurance Co. Ltd. v. Parvathneni and another (2009) 8 SCC 785 which doubted the correctness of the decisions which in exercise of jurisdiction under Article 142 of the Constitution of India directing insurance company to pay the compensation amount even though insurance company has no liability to pay. In Parvathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and thatif the insurance company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicleThe above reference in Parvathneni case has been disposed of on 17.09.2013 by thes Bench keeping the questions of law open to be decided in an appropriate case12. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored13. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan and others (2004) 13 SCC 224 where this Court held that….that for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer.
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East India Hotels Ltd Vs. Commissioner of Income Tax | Court has opined that the said concept is relevant only in the case of factories. It was following the said decision that Question 2 was answered in favour of the Revenue. It is brought to our notice that in a subsequent decision in S.P. Jaiswal Estates (P) Ltd. [S.P. Jaiswal Estates (P) Ltd. v. CIT, 1995 (216) ITR 145 (Cal)] another Division Bench has taken a contrary view. The latter Division Bench has held that even a hotel is entitled to extra shift allowance 5. The rates of depreciation are provided in Appendix I to the Income Tax Rules. Whether it is prior to 1-4-1970 or thereafter, depreciation is allowed on "machinery and plant", mentioned as Item III in the Appendix. Prior to 1-4-1970, the rate of depreciation on machinery and plant was 7 per cent. But in the case of a concern working double shift, an additional 50 per cent of the said rate of depreciation was allowed. Similarly in the case of triple shift, another 50 per cent of the said rate was allowed. In other words, in the case of a concern working for three shifts, the rate of depreciation allowed was 14 per cent. After 1-4-1970, the extra shift depreciation allowance was practically continued in same terms in clause (iv) of Item III, though there was a change in the rate. Clause (iii) of Item III, however, provided "extra depreciation allowance" for "approved hotels". It would be appropriate to read clauses (ii) and (iv) of Item III, to the extent they are relevant for our purposes "... (iii) An extra allowance of depreciation of an amount equal to one-half of the normal allowance shall be allowed in the case of machinery and plant installed by an assessee, being an Indian company, in premises used by it as a hotel where such hotel is for the time being approved by the Central Government for the purposes of Section 33 of the ActExplanation. - For the purposes of this sub-item and sub-item (iv), normal allowance means the amount of depreciation allowance other than the extra depreciation allowance under this sub-item or the extra shift depreciation allowance under sub-item (iv) which is allowable under Rule 5(iv) An extra allowance up to a maximum of an amount equal to one-half of the normal allowance shall be allowed where a concern claims such allowance on account of double shift working and establishes that it has worked double shift. An extra allowance up to a maximum of an amount equal to the normal allowance, instead of one-half of the normal allowance shall be allowed where a concern claims such allowance on account of triple shift working and establishes that it has worked triple shift." 6. The contention of the Revenue is that an approved hotel - (the appellant is admittedly running an approval hotel) - is entitled only to the depreciation allowance provided by clause (iii) and not to the extra shift depreciation allowance provided by clause (iv). The contention is that an approved hotel is not entitled to both the said allowances simultaneously and that it is entitled only to the extra depreciation allowance in clause (iii) but not to extra shift allowance in clause (iv). It is not possible to agree. The depreciation is allowed on machinery and plant and not with reference to the nature or character of the activity carried on in the premises where the said machinery is installed. Indeed prior to 1-4-1970, there was no reference to hotels in Item III. If any machinery in installed in a hotel, such machinery is certainly entitled to depreciation allowance. Admittedly, there is no provision in the Appendix - whether before 1-4-1970 or thereafter - stating that a hotel is not entitled to extra shift depreciation allowance. The expression shift is not defined in the Income Tax Act. It is defined only in the Factories Act. The definition is of great relevance to the controversy herein. It reads. "2. (r) where work of the same kind is carried out by two or more sets of workers working during different periods of the day, each of such sets is called a relay and each of such periods is called a shift." * 7. A reading of the definition shows that the concept of shift is with reference to the workers and not with reference to concern or establishment. In a hotel which works twenty-four hours a day, there is bound to be two or more sets of workers working during different periods of the day. If so, the concept of shift cannot be said to be inapplicable or irrelevant in the case of a hotel. We are, therefore, of the opinion that a hotel is also entitled to claim extra shift depreciation allowance on the machinery and plant under clause (iv) of Item III (after 1-4-1970). So far as the extra depreciation allowance provided by clause (iii) is concerned, it is a special and an additional allowance provided for "approved hotels" only. It does not, however, mean that an approved hotel, to which the depreciation provided in clause (iii) is allowed, deprived of the depreciation provided in clause (iv). If the argument of Revenue is accepted, a strange consequence would follow : a hotel which is not approved may get extra shift depreciation allowance (for three shifts) under clause (iv) while an approved hotel will get only the depreciation provided by clause (iii), which would be less than the depreciation allowance provided by clause (iv). We are, therefore, of the opinion that plant and/or machinery installed in a hotel is entitled to extra shift depreciation allowance provided by clause (iv) of Item III in Appendix I and the an approved hotel is entitled, in addition, to extra depreciation allowance provided by clause (iii). For the above reasons, Question 2 is answered in the affirmative i.e., in favour of the assessee and against the Revenue. Consequently, Question 1 is also answered in favour of the assessee and against the Revenue. 8. | 1[ds]It is not possible to agree. The depreciation is allowed on machinery and plant and not with reference to the nature or character of the activity carried on in the premises where the said machinery is installed. Indeed prior to 1-4-1970, there was no reference to hotels in Item III. If any machinery in installed in a hotel, such machinery is certainly entitled to depreciation allowance. Admittedly, there is no provision in the Appendix - whether before 1-4-1970 or thereafter - stating that a hotel is not entitled to extra shift depreciation allowance. The expression shift is not defined in the Income Tax Act. It is defined only in the Factories Act. The definition is of great relevance to the controversy herein.A reading of the definition shows that the concept of shift is with reference to the workers and not with reference to concern or establishment. In a hotel which works twenty-four hours a day, there is bound to be two or more sets of workers working during different periods of the day. If so, the concept of shift cannot be said to be inapplicable or irrelevant in the case of a hotel. We are, therefore, of the opinion that a hotel is also entitled to claim extra shift depreciation allowance on the machinery and plant under clause (iv) of Item III (after 1-4-1970). So far as the extra depreciation allowance provided by clause (iii) is concerned, it is a special and an additional allowance provided for "approved hotels" only. It does not, however, mean that an approved hotel, to which the depreciation provided in clause (iii) is allowed, deprived of the depreciation provided in clause (iv). If the argument of Revenue is accepted, a strange consequence would follow : a hotel which is not approved may get extra shift depreciation allowance (for three shifts) under clause (iv) while an approved hotel will get only the depreciation provided by clause (iii), which would be less than the depreciation allowance provided by clause (iv). We are, therefore, of the opinion that plant and/or machinery installed in a hotel is entitled to extra shift depreciation allowance provided by clause (iv) of Item III in Appendix I and the an approved hotel is entitled, in addition, to extra depreciation allowance provided by clause (iii). For the above reasons, Question 2 is answered in the affirmative i.e., in favour of the assessee and against the Revenue. Consequently, Question 1 is also answered in favour of the assessee and against the Revenue. | 1 | 1,560 | 484 | ### 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:
Court has opined that the said concept is relevant only in the case of factories. It was following the said decision that Question 2 was answered in favour of the Revenue. It is brought to our notice that in a subsequent decision in S.P. Jaiswal Estates (P) Ltd. [S.P. Jaiswal Estates (P) Ltd. v. CIT, 1995 (216) ITR 145 (Cal)] another Division Bench has taken a contrary view. The latter Division Bench has held that even a hotel is entitled to extra shift allowance 5. The rates of depreciation are provided in Appendix I to the Income Tax Rules. Whether it is prior to 1-4-1970 or thereafter, depreciation is allowed on "machinery and plant", mentioned as Item III in the Appendix. Prior to 1-4-1970, the rate of depreciation on machinery and plant was 7 per cent. But in the case of a concern working double shift, an additional 50 per cent of the said rate of depreciation was allowed. Similarly in the case of triple shift, another 50 per cent of the said rate was allowed. In other words, in the case of a concern working for three shifts, the rate of depreciation allowed was 14 per cent. After 1-4-1970, the extra shift depreciation allowance was practically continued in same terms in clause (iv) of Item III, though there was a change in the rate. Clause (iii) of Item III, however, provided "extra depreciation allowance" for "approved hotels". It would be appropriate to read clauses (ii) and (iv) of Item III, to the extent they are relevant for our purposes "... (iii) An extra allowance of depreciation of an amount equal to one-half of the normal allowance shall be allowed in the case of machinery and plant installed by an assessee, being an Indian company, in premises used by it as a hotel where such hotel is for the time being approved by the Central Government for the purposes of Section 33 of the ActExplanation. - For the purposes of this sub-item and sub-item (iv), normal allowance means the amount of depreciation allowance other than the extra depreciation allowance under this sub-item or the extra shift depreciation allowance under sub-item (iv) which is allowable under Rule 5(iv) An extra allowance up to a maximum of an amount equal to one-half of the normal allowance shall be allowed where a concern claims such allowance on account of double shift working and establishes that it has worked double shift. An extra allowance up to a maximum of an amount equal to the normal allowance, instead of one-half of the normal allowance shall be allowed where a concern claims such allowance on account of triple shift working and establishes that it has worked triple shift." 6. The contention of the Revenue is that an approved hotel - (the appellant is admittedly running an approval hotel) - is entitled only to the depreciation allowance provided by clause (iii) and not to the extra shift depreciation allowance provided by clause (iv). The contention is that an approved hotel is not entitled to both the said allowances simultaneously and that it is entitled only to the extra depreciation allowance in clause (iii) but not to extra shift allowance in clause (iv). It is not possible to agree. The depreciation is allowed on machinery and plant and not with reference to the nature or character of the activity carried on in the premises where the said machinery is installed. Indeed prior to 1-4-1970, there was no reference to hotels in Item III. If any machinery in installed in a hotel, such machinery is certainly entitled to depreciation allowance. Admittedly, there is no provision in the Appendix - whether before 1-4-1970 or thereafter - stating that a hotel is not entitled to extra shift depreciation allowance. The expression shift is not defined in the Income Tax Act. It is defined only in the Factories Act. The definition is of great relevance to the controversy herein. It reads. "2. (r) where work of the same kind is carried out by two or more sets of workers working during different periods of the day, each of such sets is called a relay and each of such periods is called a shift." * 7. A reading of the definition shows that the concept of shift is with reference to the workers and not with reference to concern or establishment. In a hotel which works twenty-four hours a day, there is bound to be two or more sets of workers working during different periods of the day. If so, the concept of shift cannot be said to be inapplicable or irrelevant in the case of a hotel. We are, therefore, of the opinion that a hotel is also entitled to claim extra shift depreciation allowance on the machinery and plant under clause (iv) of Item III (after 1-4-1970). So far as the extra depreciation allowance provided by clause (iii) is concerned, it is a special and an additional allowance provided for "approved hotels" only. It does not, however, mean that an approved hotel, to which the depreciation provided in clause (iii) is allowed, deprived of the depreciation provided in clause (iv). If the argument of Revenue is accepted, a strange consequence would follow : a hotel which is not approved may get extra shift depreciation allowance (for three shifts) under clause (iv) while an approved hotel will get only the depreciation provided by clause (iii), which would be less than the depreciation allowance provided by clause (iv). We are, therefore, of the opinion that plant and/or machinery installed in a hotel is entitled to extra shift depreciation allowance provided by clause (iv) of Item III in Appendix I and the an approved hotel is entitled, in addition, to extra depreciation allowance provided by clause (iii). For the above reasons, Question 2 is answered in the affirmative i.e., in favour of the assessee and against the Revenue. Consequently, Question 1 is also answered in favour of the assessee and against the Revenue. 8.
### Response:
1
### Explanation:
It is not possible to agree. The depreciation is allowed on machinery and plant and not with reference to the nature or character of the activity carried on in the premises where the said machinery is installed. Indeed prior to 1-4-1970, there was no reference to hotels in Item III. If any machinery in installed in a hotel, such machinery is certainly entitled to depreciation allowance. Admittedly, there is no provision in the Appendix - whether before 1-4-1970 or thereafter - stating that a hotel is not entitled to extra shift depreciation allowance. The expression shift is not defined in the Income Tax Act. It is defined only in the Factories Act. The definition is of great relevance to the controversy herein.A reading of the definition shows that the concept of shift is with reference to the workers and not with reference to concern or establishment. In a hotel which works twenty-four hours a day, there is bound to be two or more sets of workers working during different periods of the day. If so, the concept of shift cannot be said to be inapplicable or irrelevant in the case of a hotel. We are, therefore, of the opinion that a hotel is also entitled to claim extra shift depreciation allowance on the machinery and plant under clause (iv) of Item III (after 1-4-1970). So far as the extra depreciation allowance provided by clause (iii) is concerned, it is a special and an additional allowance provided for "approved hotels" only. It does not, however, mean that an approved hotel, to which the depreciation provided in clause (iii) is allowed, deprived of the depreciation provided in clause (iv). If the argument of Revenue is accepted, a strange consequence would follow : a hotel which is not approved may get extra shift depreciation allowance (for three shifts) under clause (iv) while an approved hotel will get only the depreciation provided by clause (iii), which would be less than the depreciation allowance provided by clause (iv). We are, therefore, of the opinion that plant and/or machinery installed in a hotel is entitled to extra shift depreciation allowance provided by clause (iv) of Item III in Appendix I and the an approved hotel is entitled, in addition, to extra depreciation allowance provided by clause (iii). For the above reasons, Question 2 is answered in the affirmative i.e., in favour of the assessee and against the Revenue. Consequently, Question 1 is also answered in favour of the assessee and against the Revenue.
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Padmini Bai Vs. Tangavva and Others | Sarkaria, J.1. Tatya died on February 2, 1955. The respondents, Tangavva and Sundra Bai are the co-widows of Tatya. They were co-plaintiffs in the original suit.2. The suit lands originally belonged to one Dev Gonda Patil who gifted the same by a registered deed, dated October 13, 1902 to Smt. Aku Bai. Aku Bai died survived by her son, Tatya and a daughter, Padmini, who is the appellant before us. Tatya died issueless on February 2, 1955, survived by his co-widows, Tangavva and Sundra Bai.3. The co-widows (who are respondents 1 and 2 in this appeal) filed Suit No. 25 of 1967 for recovery of possession of the suit lands admeasuring 15 acres and 16 gunthas, bearing Survey Nos. 137, 138 and 238, situate in Mouza Shirti. The plaintiffs case was that on the death of Aku Bai (which according to the evidence took place sometime in 1905 or 1906), their husband Tatya became the owner of the entire suit lands, and continued in exclusive possession thereof till his death in 1955. After Tatyas death, Padmini, the sister of Tatya, got her name mutated in the records in her favour and forcibly entered into possession of the suit lands. Subsequently, by an amendment of the plaint, it was pleaded that after Aku Bais death, Tatya remained in adverse possession of the suit land for a period of 40-50 years till his death, and had thus became a full owner thereof, and the plaintiffs being co-widows of Tatya, succeeded him to the exclusion of defendant 1.4. Defendant 1 resisted the suit and pleaded that the suit property was stridhan property of her mother Aku Bai, and under Hindu Law, on her mothers death, the defendant became its owner in preference to her brother, Tatya. She denied that Tatya was in possession of the suit lands as an owner or that he was in its adverse possession. In the alternative, she pleaded that Tatya was in possession and enjoyment of the suit land as her guardian during her minority and thereafter because of her cordial relations with Tatya, she allowed the latter to remain in possession of the land.5. The trial Court by its judgment dated October 19, 1968, held that the land in suit was the stridhan property of Aku Bai and according to Hindu Law, Padmini Bai, being the daughter, was preferential her to the suit property to the exclusion of the son, Tatya. Therefore, on the death of Tatya, the plaintiffs had no claim to the suit land as his heirs.6. In regard to the question of adverse possession, the trial Court found that Tatya had absconded as he was suspected of the murder of one Parsia and that the evidence of the plaintiffs witnesses regarding the possession of Tatya during that period, was not credible. The trial Court, however, came to the conclusion that from 1941 onwards till his death in 1955, Tatya was proved to be in adverse possession of the suit lands and had become an owner by prescription. It was further held that the suit was within time as it had been brought within 12 years from the death of Tatya. In the result, the trial Court decreed the suit of the plaintiff.7. Padmini Bai, defendant, went in appeal to the High Court of Bombay. A Bench of two learned Judges of the High Court summarily dismissed the appeal by a speaking order.8. Against that order, dated January 14, 1969, of the High Court, Padmini Bai has come in appeal to this Court after obtaining special leave under Article 136 of the Constitution.9. We have heard Mr. Mehta, learned for the appellant, at length, and have gone through the record. We find no merit in this appeal. The overwhelming oral and documentary evidence of a creditworthy character on the record shows that Tatya was in continuous possession of the suit lands adversely to the appellant for a period of about 40 years. It is common ground that Tatya was not an heir of Aku Bai. Under the Hindu Law then governing the parties, Padmini Bai, being the daughter of Aku Bai, was entitled to succeed to property to the exclusion of her brother, Tatya.10. Aku Bai died in or about 1905-1906. At that time, Padmini Bai and Tatya, both were minors. After obtaining majority, Tatya was cultivating the land sometimes personally and sometimes through tenants. Exhibits 85 to 91 are Kabuliyats (lease deeds) relating to the years 1905, 1913, 1916, 1937, 1938, 1945 and 1946 covering, in all, a total period of about 41 years, which shows that it was Tatya only who was leasing out these lands to various tenants from time to time. These Kabuliyats show that even during his minority, Tatya was in possession of the suit lands through tenants. Extracts from the records of rights (Exs. 45 to 49) relating to the period from 1932 to 1946 were also produced in evidence. In those records, Tatya has been entered as sole occupant of the suit lands. These records of rights are presumptive evidence of Tatyas possession of the suit land, at any rate from 1932 onwards. There was nothing on record to show that Tatyas possession was ever disturbed by defendant 1 at any time during his lifetime. Then, a number of land revenue receipts (Exs. 56 to 72) relating to the period 1941 to 1955 were brought in evidence. It was evident therefrom that during that period of 14 years, land revenue was always paid on account of Tatya and not defendant 1.11. We have, therefore, no hesitation in holding in agreement with the courts below that Tatya had acquired title by remaining in exclusive and open possession of the suit lands adversely to Padmini Bai for a period far exceeding 12 years, and this possession was never interrupted or disturbed. He had thus acquired ownership by prescription. | 0[ds]We find no merit in this appeal. The overwhelming oral and documentary evidence of a creditworthy character on the record shows that Tatya was in continuous possession of the suit lands adversely to the appellant for a period of about 40 years. It is common ground that Tatya was not an heir of Aku Bai. Under the Hindu Law then governing the parties, Padmini Bai, being the daughter of Aku Bai, was entitled to succeed to property to the exclusion of her brother, Tatya.10. Aku Bai died in or aboutAt that time, Padmini Bai and Tatya, both were minors. After obtaining majority, Tatya was cultivating the land sometimes personally and sometimes through tenants. Exhibits 85 to 91 are Kabuliyats (lease deeds) relating to the years 1905, 1913, 1916, 1937, 1938, 1945 and 1946 covering, in all, a total period of about 41 years, which shows that it was Tatya only who was leasing out these lands to various tenants from time to time. These Kabuliyats show that even during his minority, Tatya was in possession of the suit lands through tenants. Extracts from the records of rights (Exs. 45 to 49) relating to the period from 1932 to 1946 were also produced in evidence. In those records, Tatya has been entered as sole occupant of the suit lands. These records of rights are presumptive evidence of Tatyas possession of the suit land, at any rate from 1932 onwards. There was nothing on record to show that Tatyas possession was ever disturbed by defendant 1 at any time during his lifetime. Then, a number of land revenue receipts (Exs. 56 to 72) relating to the period 1941 to 1955 were brought in evidence. It was evident therefrom that during that period of 14 years, land revenue was always paid on account of Tatya and not defendant 1.11. We have, therefore, no hesitation in holding in agreement with the courts below that Tatya had acquired title by remaining in exclusive and open possession of the suit lands adversely to Padmini Bai for a period far exceeding 12 years, and this possession was never interrupted or disturbed. He had thus acquired ownership by prescription. | 0 | 1,111 | 412 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
Sarkaria, J.1. Tatya died on February 2, 1955. The respondents, Tangavva and Sundra Bai are the co-widows of Tatya. They were co-plaintiffs in the original suit.2. The suit lands originally belonged to one Dev Gonda Patil who gifted the same by a registered deed, dated October 13, 1902 to Smt. Aku Bai. Aku Bai died survived by her son, Tatya and a daughter, Padmini, who is the appellant before us. Tatya died issueless on February 2, 1955, survived by his co-widows, Tangavva and Sundra Bai.3. The co-widows (who are respondents 1 and 2 in this appeal) filed Suit No. 25 of 1967 for recovery of possession of the suit lands admeasuring 15 acres and 16 gunthas, bearing Survey Nos. 137, 138 and 238, situate in Mouza Shirti. The plaintiffs case was that on the death of Aku Bai (which according to the evidence took place sometime in 1905 or 1906), their husband Tatya became the owner of the entire suit lands, and continued in exclusive possession thereof till his death in 1955. After Tatyas death, Padmini, the sister of Tatya, got her name mutated in the records in her favour and forcibly entered into possession of the suit lands. Subsequently, by an amendment of the plaint, it was pleaded that after Aku Bais death, Tatya remained in adverse possession of the suit land for a period of 40-50 years till his death, and had thus became a full owner thereof, and the plaintiffs being co-widows of Tatya, succeeded him to the exclusion of defendant 1.4. Defendant 1 resisted the suit and pleaded that the suit property was stridhan property of her mother Aku Bai, and under Hindu Law, on her mothers death, the defendant became its owner in preference to her brother, Tatya. She denied that Tatya was in possession of the suit lands as an owner or that he was in its adverse possession. In the alternative, she pleaded that Tatya was in possession and enjoyment of the suit land as her guardian during her minority and thereafter because of her cordial relations with Tatya, she allowed the latter to remain in possession of the land.5. The trial Court by its judgment dated October 19, 1968, held that the land in suit was the stridhan property of Aku Bai and according to Hindu Law, Padmini Bai, being the daughter, was preferential her to the suit property to the exclusion of the son, Tatya. Therefore, on the death of Tatya, the plaintiffs had no claim to the suit land as his heirs.6. In regard to the question of adverse possession, the trial Court found that Tatya had absconded as he was suspected of the murder of one Parsia and that the evidence of the plaintiffs witnesses regarding the possession of Tatya during that period, was not credible. The trial Court, however, came to the conclusion that from 1941 onwards till his death in 1955, Tatya was proved to be in adverse possession of the suit lands and had become an owner by prescription. It was further held that the suit was within time as it had been brought within 12 years from the death of Tatya. In the result, the trial Court decreed the suit of the plaintiff.7. Padmini Bai, defendant, went in appeal to the High Court of Bombay. A Bench of two learned Judges of the High Court summarily dismissed the appeal by a speaking order.8. Against that order, dated January 14, 1969, of the High Court, Padmini Bai has come in appeal to this Court after obtaining special leave under Article 136 of the Constitution.9. We have heard Mr. Mehta, learned for the appellant, at length, and have gone through the record. We find no merit in this appeal. The overwhelming oral and documentary evidence of a creditworthy character on the record shows that Tatya was in continuous possession of the suit lands adversely to the appellant for a period of about 40 years. It is common ground that Tatya was not an heir of Aku Bai. Under the Hindu Law then governing the parties, Padmini Bai, being the daughter of Aku Bai, was entitled to succeed to property to the exclusion of her brother, Tatya.10. Aku Bai died in or about 1905-1906. At that time, Padmini Bai and Tatya, both were minors. After obtaining majority, Tatya was cultivating the land sometimes personally and sometimes through tenants. Exhibits 85 to 91 are Kabuliyats (lease deeds) relating to the years 1905, 1913, 1916, 1937, 1938, 1945 and 1946 covering, in all, a total period of about 41 years, which shows that it was Tatya only who was leasing out these lands to various tenants from time to time. These Kabuliyats show that even during his minority, Tatya was in possession of the suit lands through tenants. Extracts from the records of rights (Exs. 45 to 49) relating to the period from 1932 to 1946 were also produced in evidence. In those records, Tatya has been entered as sole occupant of the suit lands. These records of rights are presumptive evidence of Tatyas possession of the suit land, at any rate from 1932 onwards. There was nothing on record to show that Tatyas possession was ever disturbed by defendant 1 at any time during his lifetime. Then, a number of land revenue receipts (Exs. 56 to 72) relating to the period 1941 to 1955 were brought in evidence. It was evident therefrom that during that period of 14 years, land revenue was always paid on account of Tatya and not defendant 1.11. We have, therefore, no hesitation in holding in agreement with the courts below that Tatya had acquired title by remaining in exclusive and open possession of the suit lands adversely to Padmini Bai for a period far exceeding 12 years, and this possession was never interrupted or disturbed. He had thus acquired ownership by prescription.
### Response:
0
### Explanation:
We find no merit in this appeal. The overwhelming oral and documentary evidence of a creditworthy character on the record shows that Tatya was in continuous possession of the suit lands adversely to the appellant for a period of about 40 years. It is common ground that Tatya was not an heir of Aku Bai. Under the Hindu Law then governing the parties, Padmini Bai, being the daughter of Aku Bai, was entitled to succeed to property to the exclusion of her brother, Tatya.10. Aku Bai died in or aboutAt that time, Padmini Bai and Tatya, both were minors. After obtaining majority, Tatya was cultivating the land sometimes personally and sometimes through tenants. Exhibits 85 to 91 are Kabuliyats (lease deeds) relating to the years 1905, 1913, 1916, 1937, 1938, 1945 and 1946 covering, in all, a total period of about 41 years, which shows that it was Tatya only who was leasing out these lands to various tenants from time to time. These Kabuliyats show that even during his minority, Tatya was in possession of the suit lands through tenants. Extracts from the records of rights (Exs. 45 to 49) relating to the period from 1932 to 1946 were also produced in evidence. In those records, Tatya has been entered as sole occupant of the suit lands. These records of rights are presumptive evidence of Tatyas possession of the suit land, at any rate from 1932 onwards. There was nothing on record to show that Tatyas possession was ever disturbed by defendant 1 at any time during his lifetime. Then, a number of land revenue receipts (Exs. 56 to 72) relating to the period 1941 to 1955 were brought in evidence. It was evident therefrom that during that period of 14 years, land revenue was always paid on account of Tatya and not defendant 1.11. We have, therefore, no hesitation in holding in agreement with the courts below that Tatya had acquired title by remaining in exclusive and open possession of the suit lands adversely to Padmini Bai for a period far exceeding 12 years, and this possession was never interrupted or disturbed. He had thus acquired ownership by prescription.
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RAJESH KUMAR DWIVEDI Vs. STATE OF UP | obtained from MITI, Haldwani for services and posts under State Government. The same is reproduced hereunder:?From The Director Training and Employment Uttar Pradesh, Lucknow To The Secretary Government of Uttar Pradesh Labour Department Secretariat, Lucknow. Letter No. /E-2/0102/Policy(General)/84-85 Dated: August 18, 1988 Sub: Regarding issuance of directions for considering the trainees obtained training from Model Industrial Training Institute, Haldwani. Sir Shri Q.L. Juneja, Principal/Deputy Director, Model Industrial Training Institute, Haldwani (Nainital) has requested that orders for considering the trainees who have obtained training from this institute for the services/appointments under State Government. In this reference, he informed that directions for issuance of necessary orders in this regard have already been given to all the Ministries of Government of India and different departments vide Letter No. D.G.E.T.-5/7/83-T.C. dated 31 st October, 1983 and that request has been made for issuance of above orders at the earliest to all the State Governments and Union T erritories of the Country. 2. In this reference, it is noteworthy that on recommendation of National Council of Vocational Training (NCVT), the Government of India has established the above Institute in year 1981 under re- structured training pattern of the Craftsmen training scheme, for which, the Government has already been provided 11 acres of land. 3. Following two certificates are being issued by the Model Industrial Training Institute, Haldwani (Nainital): (1) National Training Certificate Basic Training. (2) Certificate of Proficiency awarding to the successful trainees under the restructured training pattern of Craftsmen Training Scheme. 4. It is well-considered opinion of this directorate, that the above both certificates granted by above institute kindly be declared eligible for services and posts under State Government like Government of India, whereby, the candidates trained by above institute may be retired in the services under State Government.? 5. Subsequently, another Circular was issued by the Training and Employment Directorate on 9 th April, 1992 that certificate in Fitter Trade of two years granted by MITI, Haldwani which includes one year basic training and six months module be treated equivalent to the National Trade Certificate. The Circular reads as under:?From The Director Training and Employment Directorate Uttar Pradesh, Lucknow To 1. All Regional/District/City Employment Officer All Regional/District/City Employment Office, U.P . 2. All Deputy-Head of University, Employment, Information and Consultation Center, U.P . Letter No. 1083/E-2/0102/Policy Regn./90 Lucknow, dated 09 April, 92. Sub: For getting recognized certificate in two years fitter trade granted by MITI, Haldwani equivalent to N.T.C. Sir It is informed vide letter No. D.G.E.T.-7(1)/91-C.D. dated 18.02.1992 of Training and Employment Directorate General, New Delhi that the certificate in fitter trade of two years granted by MITI, Haldwani wherein, one year basic training and six months modules are included, shall be treated equivalent to the National Trade Certificate. Therefore, you are hereby directed that those candidates, who have received above training and may appear for registration in your office, then, please be registered them in profession equivalent to N.T.C. for Employment/Trainee Training.? 6. The argument of learned counsel for the appellant is that the qualification obtained by the candidate in three different modules is treated to be equivalent to the Fitter Trade of two years duration as per the Circulars issued by the Government of Uttar Pradesh on 18 th August, 1988 and 9 th April, 1992, therefore, the appellant is eligible candidate for appointment to the post of Fitter.7. Learned counsel for the State has filed an additional affidavit to explain the said three Circulars relied upon by the appellant. It is mentioned that the appellant is not possessed of the qualification as mentioned in the Uttar Pradesh Industrial Training Institutes (Instructors) Service Rules, 1991 3 , as amended in the year 2003 called the Uttar Pradesh Industrial Training Institutes (Instructors) 3 for short, ‘the Rules? Service (Second Amendment) Rules, 2003 4 . It is pointed out that Circulars dated 16 th December, 1983, 18 th August, 1988 and 9 th April, 1992, relied upon by the appellant, will have no effect unless necessary amendment is being made in the Rules for the appointment of Instructors in the State. 8. Rule 8 of the amended Rules has prescribed the following academic qualifications:?8. Academic Qualification – (1) A candidate for recruitment to the post of instructor other than the post of language instructor (Hindi/English) in the Service must possess the following qualifications: (1) Educational - (i) Must have passed Intermediate examination of the Board of High School and Intermediate Education, Uttar Pradesh or an Examination recognised by the Government as equivalent, thereto. (ii) Must have obtained a certificate in the respective trade from the National Council for Training in Vocational Trades. OR Must have obtained National Apprenticeship Certificate in the respective trade. OR **** ****? 9. We find that the stand of the State that appellant is not possessed of educational qualifications is not tenable. The eligibility condition is that a candidate must have obtained a certificate in respective trade from NCVT. It is not necessary that a qualification prescribed in the Rules has to be possessed in one certificate. The Circular of 4 for short, ‘the amended Rules? the Government of India dated 16 th December, 1983 prescribes the following conditions: table 10. It is on the basis of such Circular, the Director of Training and Employment of the State has issued Circulars on 18 th August, 1988 and on 9 th April, 1992 that such qualification will be deemed to be equivalent to the National Trade Certificate. Once the educational qualification has been treated to be equivalent by the State Government in the Circulars issued earlier, the stand of the State that appellant is not qualified has no legs to stand. The State itself has treated qualification of basic course in Mechanical Trade Fitter, General Module and Metrology and Engineering Inspection Module equivalent to conventional pattern of Craftsmen Training Scheme. Thus, we find that the stand of the State that the appellant was not possessing educational qualification cannot be sustained. The candidature of the appellant was not validly rejected. | 0[ds]9. We find that the stand of the State that appellant is not possessed of educational qualifications is not tenable. The eligibility condition is that a candidate must have obtained a certificate in respective trade from NCVT. It is not necessary that a qualification prescribed in the Rules has to be possessed in one certificate10. It is on the basis of such Circular, the Director of Training and Employment of the State has issued Circulars on 18 th August, 1988 and on 9 th April, 1992 that such qualification will be deemed to be equivalent to the National Trade Certificate. Once the educational qualification has been treated to be equivalent by the State Government in the Circulars issued earlier, the stand of the State that appellant is not qualified has no legs to stand. The State itself has treated qualification of basic course in Mechanical Trade Fitter, General Module and Metrology and Engineering Inspection Module equivalent to conventional pattern of Craftsmen Training Scheme. Thus, we find that the stand of the State that the appellant was not possessing educational qualification cannot be sustained. The candidature of the appellant was not validly rejected. | 0 | 1,600 | 212 | ### 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:
obtained from MITI, Haldwani for services and posts under State Government. The same is reproduced hereunder:?From The Director Training and Employment Uttar Pradesh, Lucknow To The Secretary Government of Uttar Pradesh Labour Department Secretariat, Lucknow. Letter No. /E-2/0102/Policy(General)/84-85 Dated: August 18, 1988 Sub: Regarding issuance of directions for considering the trainees obtained training from Model Industrial Training Institute, Haldwani. Sir Shri Q.L. Juneja, Principal/Deputy Director, Model Industrial Training Institute, Haldwani (Nainital) has requested that orders for considering the trainees who have obtained training from this institute for the services/appointments under State Government. In this reference, he informed that directions for issuance of necessary orders in this regard have already been given to all the Ministries of Government of India and different departments vide Letter No. D.G.E.T.-5/7/83-T.C. dated 31 st October, 1983 and that request has been made for issuance of above orders at the earliest to all the State Governments and Union T erritories of the Country. 2. In this reference, it is noteworthy that on recommendation of National Council of Vocational Training (NCVT), the Government of India has established the above Institute in year 1981 under re- structured training pattern of the Craftsmen training scheme, for which, the Government has already been provided 11 acres of land. 3. Following two certificates are being issued by the Model Industrial Training Institute, Haldwani (Nainital): (1) National Training Certificate Basic Training. (2) Certificate of Proficiency awarding to the successful trainees under the restructured training pattern of Craftsmen Training Scheme. 4. It is well-considered opinion of this directorate, that the above both certificates granted by above institute kindly be declared eligible for services and posts under State Government like Government of India, whereby, the candidates trained by above institute may be retired in the services under State Government.? 5. Subsequently, another Circular was issued by the Training and Employment Directorate on 9 th April, 1992 that certificate in Fitter Trade of two years granted by MITI, Haldwani which includes one year basic training and six months module be treated equivalent to the National Trade Certificate. The Circular reads as under:?From The Director Training and Employment Directorate Uttar Pradesh, Lucknow To 1. All Regional/District/City Employment Officer All Regional/District/City Employment Office, U.P . 2. All Deputy-Head of University, Employment, Information and Consultation Center, U.P . Letter No. 1083/E-2/0102/Policy Regn./90 Lucknow, dated 09 April, 92. Sub: For getting recognized certificate in two years fitter trade granted by MITI, Haldwani equivalent to N.T.C. Sir It is informed vide letter No. D.G.E.T.-7(1)/91-C.D. dated 18.02.1992 of Training and Employment Directorate General, New Delhi that the certificate in fitter trade of two years granted by MITI, Haldwani wherein, one year basic training and six months modules are included, shall be treated equivalent to the National Trade Certificate. Therefore, you are hereby directed that those candidates, who have received above training and may appear for registration in your office, then, please be registered them in profession equivalent to N.T.C. for Employment/Trainee Training.? 6. The argument of learned counsel for the appellant is that the qualification obtained by the candidate in three different modules is treated to be equivalent to the Fitter Trade of two years duration as per the Circulars issued by the Government of Uttar Pradesh on 18 th August, 1988 and 9 th April, 1992, therefore, the appellant is eligible candidate for appointment to the post of Fitter.7. Learned counsel for the State has filed an additional affidavit to explain the said three Circulars relied upon by the appellant. It is mentioned that the appellant is not possessed of the qualification as mentioned in the Uttar Pradesh Industrial Training Institutes (Instructors) Service Rules, 1991 3 , as amended in the year 2003 called the Uttar Pradesh Industrial Training Institutes (Instructors) 3 for short, ‘the Rules? Service (Second Amendment) Rules, 2003 4 . It is pointed out that Circulars dated 16 th December, 1983, 18 th August, 1988 and 9 th April, 1992, relied upon by the appellant, will have no effect unless necessary amendment is being made in the Rules for the appointment of Instructors in the State. 8. Rule 8 of the amended Rules has prescribed the following academic qualifications:?8. Academic Qualification – (1) A candidate for recruitment to the post of instructor other than the post of language instructor (Hindi/English) in the Service must possess the following qualifications: (1) Educational - (i) Must have passed Intermediate examination of the Board of High School and Intermediate Education, Uttar Pradesh or an Examination recognised by the Government as equivalent, thereto. (ii) Must have obtained a certificate in the respective trade from the National Council for Training in Vocational Trades. OR Must have obtained National Apprenticeship Certificate in the respective trade. OR **** ****? 9. We find that the stand of the State that appellant is not possessed of educational qualifications is not tenable. The eligibility condition is that a candidate must have obtained a certificate in respective trade from NCVT. It is not necessary that a qualification prescribed in the Rules has to be possessed in one certificate. The Circular of 4 for short, ‘the amended Rules? the Government of India dated 16 th December, 1983 prescribes the following conditions: table 10. It is on the basis of such Circular, the Director of Training and Employment of the State has issued Circulars on 18 th August, 1988 and on 9 th April, 1992 that such qualification will be deemed to be equivalent to the National Trade Certificate. Once the educational qualification has been treated to be equivalent by the State Government in the Circulars issued earlier, the stand of the State that appellant is not qualified has no legs to stand. The State itself has treated qualification of basic course in Mechanical Trade Fitter, General Module and Metrology and Engineering Inspection Module equivalent to conventional pattern of Craftsmen Training Scheme. Thus, we find that the stand of the State that the appellant was not possessing educational qualification cannot be sustained. The candidature of the appellant was not validly rejected.
### Response:
0
### Explanation:
9. We find that the stand of the State that appellant is not possessed of educational qualifications is not tenable. The eligibility condition is that a candidate must have obtained a certificate in respective trade from NCVT. It is not necessary that a qualification prescribed in the Rules has to be possessed in one certificate10. It is on the basis of such Circular, the Director of Training and Employment of the State has issued Circulars on 18 th August, 1988 and on 9 th April, 1992 that such qualification will be deemed to be equivalent to the National Trade Certificate. Once the educational qualification has been treated to be equivalent by the State Government in the Circulars issued earlier, the stand of the State that appellant is not qualified has no legs to stand. The State itself has treated qualification of basic course in Mechanical Trade Fitter, General Module and Metrology and Engineering Inspection Module equivalent to conventional pattern of Craftsmen Training Scheme. Thus, we find that the stand of the State that the appellant was not possessing educational qualification cannot be sustained. The candidature of the appellant was not validly rejected.
|
Goodyear India Ltd Vs. Commissioner of Income Tax | 1. This appeal takes exception to the judgment and order dt. 28th April, 2008 passed by the High Court of Delhi at New Delhi in IT Appeal No. 223 of 2005, whereby the appeal filed by the Department was allowed and the issue of deletion of undisclosed income of the Assessee answered against the Appellant-Assessee. 2. After hearing learned Counsel for the parties and perusing the impugned judgment as well as the judgment of the AO and the Tribunal, we find that the Tribunal had analysed all the relevant facts, materials and documents to arrive at the conclusion that it was not a case of nondisclosure as assumed by the Department. 3. That decision was taken up in appeal by the Department before the High Court, which had framed the following question as substantial question of law: Whether the Tribunal was correct in law in deleting the undisclosed income of the Assessee as recorded by the Securities and Exchange Commission in USA?4. The High Court, while analysing the stated question proceeded to reverse the finding of fact recorded by the Tribunal. For doing so, it recorded following reasons: The view taken by the Tribunal is completely unsustainable particularly when the parent company M/s. Goodyear Tyre & Rubber Co., USA made a full disclosure of the amounts kept outside the Assessees books of account in India without admitting the allegations made against it. Moreover, even the Assessee in India had given two letters wherein it has been mentioned that it is prepared to surrender the amount since it does not want any protracted litigation and prayed that penalty proceedings may not be launched against the Assessee. In view of the facts which have emerged from the complaint made by the SEC in USA as well as the letters sent by the Assessee to the IT Department in India, there can be no manner of doubt that the Assessee had certain amounts outside its books of accounts which were used for purposes that were not at all legitimate in as much as the Assessee was funding foreign trips by Indian Government officials and had made payments to the electricity undertaking for assuring continuous power supply to the factory premises of the Assessee. 5. The High Court essentially placed reliance on two letters written by the Assessee and assumed that it was in the form of admission of nondisclosure and an offer was given by the Assessee to pay the tax and penalty, as the case may be. 6. We have perused the two letters which had weighed with the High Court. Our analysis of the said letters is that, they had been in refutal of the allegations contained in the news items which were published around that time, when the communication was sent by the Assessee to the Department with an explanation and a without-prejudice offer. 7. In our opinion, such communication(s) cannot be treated as admission of non-disclosure as such. What is significant to note is that in the present case, the disclosure is attributed to Goodyear Tyre & Rubber Co., USA, filed by it in the proceedings in USA; and not by the Assessee as such. It is not the case of the Department that the amount referred to in the said disclosure has been received in the accounts of the Assessee or spent for and on behalf of the Appellant-Assessee under instruction, so as to be treated as undisclosed income of the Appellant. 8. As aforesaid, the two communications relied upon by the High Court cannot be taken as admission of non-disclosure nor being a case of unconditional offer to pay tax in that behalf. On the other hand, we find that the Tribunal had exhaustively analysed the entire evidence, including the two letters and taken a view which, in our opinion, is a possible view. That being purely a finding of fact, no interference was warranted. | 1[ds]2. After hearing learned Counsel for the parties and perusing the impugned judgment as well as the judgment of the AO and the Tribunal, we find that the Tribunal had analysed all the relevant facts, materials and documents to arrive at the conclusion that it was not a case of nondisclosure as assumed by the Department.6. We have perused the two letters which had weighed with the High Court. Our analysis of the said letters is that, they had been in refutal of the allegations contained in the news items which were published around that time, when the communication was sent by the Assessee to the Department with an explanation and a without-prejudice offer.7. In our opinion, such communication(s) cannot be treated as admission of non-disclosure as such. What is significant to note is that in the present case, the disclosure is attributed to Goodyear Tyre & Rubber Co., USA, filed by it in the proceedings in USA; and not by the Assessee as such. It is not the case of the Department that the amount referred to in the said disclosure has been received in the accounts of the Assessee or spent for and on behalf of the Appellant-Assessee under instruction, so as to be treated as undisclosed income of the Appellant.8. As aforesaid, the two communications relied upon by the High Court cannot be taken as admission of non-disclosure nor being a case of unconditional offer to pay tax in that behalf. On the other hand, we find that the Tribunal had exhaustively analysed the entire evidence, including the two letters and taken a view which, in our opinion, is a possible view. That being purely a finding of fact, no interference was warranted. | 1 | 708 | 321 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
1. This appeal takes exception to the judgment and order dt. 28th April, 2008 passed by the High Court of Delhi at New Delhi in IT Appeal No. 223 of 2005, whereby the appeal filed by the Department was allowed and the issue of deletion of undisclosed income of the Assessee answered against the Appellant-Assessee. 2. After hearing learned Counsel for the parties and perusing the impugned judgment as well as the judgment of the AO and the Tribunal, we find that the Tribunal had analysed all the relevant facts, materials and documents to arrive at the conclusion that it was not a case of nondisclosure as assumed by the Department. 3. That decision was taken up in appeal by the Department before the High Court, which had framed the following question as substantial question of law: Whether the Tribunal was correct in law in deleting the undisclosed income of the Assessee as recorded by the Securities and Exchange Commission in USA?4. The High Court, while analysing the stated question proceeded to reverse the finding of fact recorded by the Tribunal. For doing so, it recorded following reasons: The view taken by the Tribunal is completely unsustainable particularly when the parent company M/s. Goodyear Tyre & Rubber Co., USA made a full disclosure of the amounts kept outside the Assessees books of account in India without admitting the allegations made against it. Moreover, even the Assessee in India had given two letters wherein it has been mentioned that it is prepared to surrender the amount since it does not want any protracted litigation and prayed that penalty proceedings may not be launched against the Assessee. In view of the facts which have emerged from the complaint made by the SEC in USA as well as the letters sent by the Assessee to the IT Department in India, there can be no manner of doubt that the Assessee had certain amounts outside its books of accounts which were used for purposes that were not at all legitimate in as much as the Assessee was funding foreign trips by Indian Government officials and had made payments to the electricity undertaking for assuring continuous power supply to the factory premises of the Assessee. 5. The High Court essentially placed reliance on two letters written by the Assessee and assumed that it was in the form of admission of nondisclosure and an offer was given by the Assessee to pay the tax and penalty, as the case may be. 6. We have perused the two letters which had weighed with the High Court. Our analysis of the said letters is that, they had been in refutal of the allegations contained in the news items which were published around that time, when the communication was sent by the Assessee to the Department with an explanation and a without-prejudice offer. 7. In our opinion, such communication(s) cannot be treated as admission of non-disclosure as such. What is significant to note is that in the present case, the disclosure is attributed to Goodyear Tyre & Rubber Co., USA, filed by it in the proceedings in USA; and not by the Assessee as such. It is not the case of the Department that the amount referred to in the said disclosure has been received in the accounts of the Assessee or spent for and on behalf of the Appellant-Assessee under instruction, so as to be treated as undisclosed income of the Appellant. 8. As aforesaid, the two communications relied upon by the High Court cannot be taken as admission of non-disclosure nor being a case of unconditional offer to pay tax in that behalf. On the other hand, we find that the Tribunal had exhaustively analysed the entire evidence, including the two letters and taken a view which, in our opinion, is a possible view. That being purely a finding of fact, no interference was warranted.
### Response:
1
### Explanation:
2. After hearing learned Counsel for the parties and perusing the impugned judgment as well as the judgment of the AO and the Tribunal, we find that the Tribunal had analysed all the relevant facts, materials and documents to arrive at the conclusion that it was not a case of nondisclosure as assumed by the Department.6. We have perused the two letters which had weighed with the High Court. Our analysis of the said letters is that, they had been in refutal of the allegations contained in the news items which were published around that time, when the communication was sent by the Assessee to the Department with an explanation and a without-prejudice offer.7. In our opinion, such communication(s) cannot be treated as admission of non-disclosure as such. What is significant to note is that in the present case, the disclosure is attributed to Goodyear Tyre & Rubber Co., USA, filed by it in the proceedings in USA; and not by the Assessee as such. It is not the case of the Department that the amount referred to in the said disclosure has been received in the accounts of the Assessee or spent for and on behalf of the Appellant-Assessee under instruction, so as to be treated as undisclosed income of the Appellant.8. As aforesaid, the two communications relied upon by the High Court cannot be taken as admission of non-disclosure nor being a case of unconditional offer to pay tax in that behalf. On the other hand, we find that the Tribunal had exhaustively analysed the entire evidence, including the two letters and taken a view which, in our opinion, is a possible view. That being purely a finding of fact, no interference was warranted.
|
A.N. Venkatesh Vs. State Of Karnataka | been made. PW-13 has deposed that he was running an STD telephone booth at B.H. Road, Arasikere. On 20.5.96 A! and A2 had come to his telephone booth at about 2.30 P.M. and had telephoned to one telephone no.80347 at Hosadurga, which was later on corrected by him to be the telephone no.80537 on STD code no.08199, which is the STD code of Hosadurga. He has charged the bill of Rs.36.13 p. and the entry to that effect was made in his book. The book in which the entry has been made is not with him since he had disposed it off along with some newspapers. After the call was made he had asked for the bill amount and the accused informed him that they do not possess money and thus unable to pay. He insisted for payment. Thereafter, A-1 went to fetch the amount and he made A-2 to sit in his booth. As he was busy with another customer, he asked his neighbour, a cycle shop owner, Krishnamurthy (PW-14) to keep a watch over A-2 and at that time A-2 removed his shoes and threw them towards Krishnamurthy. PW-14 gave two slaps to A-2. Thereafter, A1 proceeded towards the house of SBM Cashier. A1 called out Wasim , S/o SBM Cashier and the amount was later on paid by Wasim. It has also come in evidence that Xerox copies of the book maintained by PW-13 was taken by the investigating officer and tried to be produced as an evidence. The sessions court did not permit the same as a secondary evidence and the matter got rested at that. The statement of this witness is corroborated by PW-14 who held a nearby cycle shop and who has said in his deposition before the court that both A1 and A2 on 20.5.96 came to the telephone booth approximately at 2.30 P.M. and he was in his cycle shop. There was some commotion on account of non-payment of the telephone bill by A1 and A2 and, therefore, he went near the telephone booth and heard A-1 and A-2 saying that they had telephoned to Hosadurga but they do not have money to pay. When he asked them why they are not paying the amount, A-2 threw a shoe towards him which landed on his right leg and he retaliated by giving one slap to A-2. Thereafter, A1 approached SBM Cashier and the cashiers son came and gave the phone bill amount to PW-13. The accused persons left the place and went towards the bus stand. On 20.5.96 the police officer of Hosadurga had brought both A1 and A2 and shown them to him and he identified them as the same persons who had made the call from the STD booth. The statement of these witnesses establishes that about 2.30 P.M. A-1 and A-2 came to the STD booth of PW-13 and thereafter an STD call was made to Hosadurga. This is corroborated by the evidence of PW-1, Thimmanna, one of the uncles of the deceased that he received the telephone call on telephone no.80537 on 20.5.96 at about 3.00 P.M. This is supported by the evidence of another uncle PW-2 MK Prakash who said that his brother Thimmanna received a call and told him that somebody from Arasikere had telephoned informing that they had kidnapped the boy and are demanding an amount of Rs.50,000/- to release the boy. The amount is to be paid by throwing it by the side of the railway track in between Arasikere and Beerur. Immediate lodging of the complaint at the police station at about 3.00 P.M. on 20.5.96 by PW-1 informing about the ransom demand made on the telephone, completely establishes that the telephone call was made at about 2.30 P.M. on 20.5.96 demanding the ransom amount. The statement of these witnesses clearly establishes that the accused appellants have made the STD call on 20.5.96 demanding ransom amount claiming that they have custody of Madhu. 13. Various circumstances in the chain of events established, ruled out the reasonable likelihood of innocence of the accused. The prosecution has been able to establish that a complaint was lodged with the police of Madhu missing from the house, after frantic search was made by the family members to find out his whereabouts. The ransom demand was made by the accused appellants from the STD booth of PW-13 over phone which was received by PW-1 and immediately thereafter complaint was made in the police station. The police party was dispatched to Arasikere to apprehend the persons who had telephoned. The accused appellants were arrested from a nearby place where the ransom demand was to be met. There is no apparent reason for the accused appellants to be present at the spot where they were arrested which is far away from the place of their residence, except for the purpose of materializing the demand made by them. The accused persons were taken to the police station of Hosadurga at about 10.00 P.M. Soon thereafter, in the morning they have taken the police party along with the family members of the deceased to the river bed of Vedavati river and on their pointing out a particular spot, the body was exhumed. Before the dead body was found they were seen in the company of the deceased nearby the place from where the dead body was exhumed. Above circumstances cumulatively taken together lead to the only irresistible conclusion that the accused appellants alone are the perpetrators of the crime. Each and every incriminating circumstance has been established by reliable and clinching evidence and we have reached to an irresistible conclusion that inference can be drawn from proved circumstances that the accused appellants were involved in the crime and are guilty. We do not find any infirmity in the judgment of the High Court and appreciation of the evidence led by the prosecution by it and the inference drawn there from. The acquittal by the trial court was rightly held to be unjustified. | 0[ds]The argument of the learned counsel is built upon the premises that the complainant party had decided to pay the ransom and to follow the instructions of payment of ransom amount by throwing it at the identified spot from the train. We have already discussed the evidence of the witnesses from where we find that the complainant party and the police have already decided not to pay the ransom amount but to apprehend the accused persons at the spot indicated by them for payment of amount. When the decision was taken there was no reason at all, to travel by train and follow the instructions. The course adopted by the complainants and the police party by travelling in a vehicle was in conformity with the decision taken by the police party and the complainant, was in natural course of conduct.Each and every incriminating circumstance has been established by reliable and clinching evidence and we have reached to an irresistible conclusion that inference can be drawn from proved circumstances that the accused appellants were involved in the crime and are guilty. We do not find any infirmity in the judgment of the High Court and appreciation of the evidence led by the prosecution by it and the inference drawn there from. The acquittal by the trial court was rightly held to be unjustified. | 0 | 5,195 | 234 | ### 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:
been made. PW-13 has deposed that he was running an STD telephone booth at B.H. Road, Arasikere. On 20.5.96 A! and A2 had come to his telephone booth at about 2.30 P.M. and had telephoned to one telephone no.80347 at Hosadurga, which was later on corrected by him to be the telephone no.80537 on STD code no.08199, which is the STD code of Hosadurga. He has charged the bill of Rs.36.13 p. and the entry to that effect was made in his book. The book in which the entry has been made is not with him since he had disposed it off along with some newspapers. After the call was made he had asked for the bill amount and the accused informed him that they do not possess money and thus unable to pay. He insisted for payment. Thereafter, A-1 went to fetch the amount and he made A-2 to sit in his booth. As he was busy with another customer, he asked his neighbour, a cycle shop owner, Krishnamurthy (PW-14) to keep a watch over A-2 and at that time A-2 removed his shoes and threw them towards Krishnamurthy. PW-14 gave two slaps to A-2. Thereafter, A1 proceeded towards the house of SBM Cashier. A1 called out Wasim , S/o SBM Cashier and the amount was later on paid by Wasim. It has also come in evidence that Xerox copies of the book maintained by PW-13 was taken by the investigating officer and tried to be produced as an evidence. The sessions court did not permit the same as a secondary evidence and the matter got rested at that. The statement of this witness is corroborated by PW-14 who held a nearby cycle shop and who has said in his deposition before the court that both A1 and A2 on 20.5.96 came to the telephone booth approximately at 2.30 P.M. and he was in his cycle shop. There was some commotion on account of non-payment of the telephone bill by A1 and A2 and, therefore, he went near the telephone booth and heard A-1 and A-2 saying that they had telephoned to Hosadurga but they do not have money to pay. When he asked them why they are not paying the amount, A-2 threw a shoe towards him which landed on his right leg and he retaliated by giving one slap to A-2. Thereafter, A1 approached SBM Cashier and the cashiers son came and gave the phone bill amount to PW-13. The accused persons left the place and went towards the bus stand. On 20.5.96 the police officer of Hosadurga had brought both A1 and A2 and shown them to him and he identified them as the same persons who had made the call from the STD booth. The statement of these witnesses establishes that about 2.30 P.M. A-1 and A-2 came to the STD booth of PW-13 and thereafter an STD call was made to Hosadurga. This is corroborated by the evidence of PW-1, Thimmanna, one of the uncles of the deceased that he received the telephone call on telephone no.80537 on 20.5.96 at about 3.00 P.M. This is supported by the evidence of another uncle PW-2 MK Prakash who said that his brother Thimmanna received a call and told him that somebody from Arasikere had telephoned informing that they had kidnapped the boy and are demanding an amount of Rs.50,000/- to release the boy. The amount is to be paid by throwing it by the side of the railway track in between Arasikere and Beerur. Immediate lodging of the complaint at the police station at about 3.00 P.M. on 20.5.96 by PW-1 informing about the ransom demand made on the telephone, completely establishes that the telephone call was made at about 2.30 P.M. on 20.5.96 demanding the ransom amount. The statement of these witnesses clearly establishes that the accused appellants have made the STD call on 20.5.96 demanding ransom amount claiming that they have custody of Madhu. 13. Various circumstances in the chain of events established, ruled out the reasonable likelihood of innocence of the accused. The prosecution has been able to establish that a complaint was lodged with the police of Madhu missing from the house, after frantic search was made by the family members to find out his whereabouts. The ransom demand was made by the accused appellants from the STD booth of PW-13 over phone which was received by PW-1 and immediately thereafter complaint was made in the police station. The police party was dispatched to Arasikere to apprehend the persons who had telephoned. The accused appellants were arrested from a nearby place where the ransom demand was to be met. There is no apparent reason for the accused appellants to be present at the spot where they were arrested which is far away from the place of their residence, except for the purpose of materializing the demand made by them. The accused persons were taken to the police station of Hosadurga at about 10.00 P.M. Soon thereafter, in the morning they have taken the police party along with the family members of the deceased to the river bed of Vedavati river and on their pointing out a particular spot, the body was exhumed. Before the dead body was found they were seen in the company of the deceased nearby the place from where the dead body was exhumed. Above circumstances cumulatively taken together lead to the only irresistible conclusion that the accused appellants alone are the perpetrators of the crime. Each and every incriminating circumstance has been established by reliable and clinching evidence and we have reached to an irresistible conclusion that inference can be drawn from proved circumstances that the accused appellants were involved in the crime and are guilty. We do not find any infirmity in the judgment of the High Court and appreciation of the evidence led by the prosecution by it and the inference drawn there from. The acquittal by the trial court was rightly held to be unjustified.
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The argument of the learned counsel is built upon the premises that the complainant party had decided to pay the ransom and to follow the instructions of payment of ransom amount by throwing it at the identified spot from the train. We have already discussed the evidence of the witnesses from where we find that the complainant party and the police have already decided not to pay the ransom amount but to apprehend the accused persons at the spot indicated by them for payment of amount. When the decision was taken there was no reason at all, to travel by train and follow the instructions. The course adopted by the complainants and the police party by travelling in a vehicle was in conformity with the decision taken by the police party and the complainant, was in natural course of conduct.Each and every incriminating circumstance has been established by reliable and clinching evidence and we have reached to an irresistible conclusion that inference can be drawn from proved circumstances that the accused appellants were involved in the crime and are guilty. We do not find any infirmity in the judgment of the High Court and appreciation of the evidence led by the prosecution by it and the inference drawn there from. The acquittal by the trial court was rightly held to be unjustified.
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Shankar Finance & Investments Vs. State of Andhra Pradesh & Others | after investigation on a first information report by one Bhattacharya, Mains Superintendent of Patna Electric Supply Co. (PES Co. for short). An objection was raised by the accused that the prosecution was incompetent as it was not launched by a person competent to do so. The said objection was based on section 50 of the Indian Electricity Act, 1910, which provided that no prosecution shall be instituted against any person for any offence against that Act or any rule, licence or order thereunder, except at the instance of the Government or an Electric Inspector, or of a person aggrieved by the same. This Court held : "... The P.E.S. Co., however, is a body corporate and must act only through its directors or officers. Here we have the evidence of Ramaswami to the effect that he held a general power of attorney from the P.E.S. Co., and that he was specifically empowered thereunder to act on behalf of P.E.S. Co., in all legal proceedings. The evidence shows that it was at his instance that Bhattacharya launched that first information report and, therefore, it would follow that the law was set in motion by the "person aggrieved". The objection based on Section 50 must, therefore, be held to be untenable."(emphasis supplied) 11. The assumption of the High Court that where the payee is a proprietary concern, the complaint can be signed only by the proprietor of the proprietary concern and not by a Power of Attorney holder of the proprietor, is not sound. It is not in dispute that in this case a power of attorney has been granted by Atmakuri Shankara Rao, as Proprietor of M/s Shankar Finance & Investments in favour of Thamada Satyanarayana and the same was produced along with the complaint. The description of the complainant is as under : "M/s Shankar Finance and Investments, (a proprietary concern of Sri Atmakuri Sankara Rao S/o Late Sri A. B. Rama Murthy, Hindu, aged about 65 years), having its office at Flat No.3B, Third Floor, Maharaja Towers. Vishakhapatnam - 3 represented by its Power of Attorney Holder Sri Thamada Satyanarayana, S/o Late Adinarayana, Hindu, aged 50 years, Service, residing at MIG-B-230, Sagarnagar, VUDA Layout, Vishakhapatnam - 43." The said description is proper and therefore, the complaint has been duly filed by the payee.12. The High Court has referred to the fact that the sworn statement before the learned Magistrate was of the attorney holder of the payee and not by the payee in person. According to the tenor of the order of the High Court, this was also irregular. But we find nothing irregular in such a procedure. It is now well settled that the object of section 200 of the Code in providing for examination of the complainant and his witnesses by the court is to satisfy itself about the existence of a prima facie case against the person accused of the offence and to ensure that such person is not harassed by false and vexatious complaints by issue of process; (See Nirmaljit Singh Hoon Vs. State of West Bengal - 1973 (3) SCC 753 ). Where the proprietor of the proprietary concern has personal knowledge of the transaction and the proprietor has signed the complaint, he has to be examined under section 200 of the Code. A power of attorney holder of the complainant who does not have personal knowledge, cannot be examined. But where the attorney holder of the complainant is in charge of the business of the payee- complainant and the Attorney holder alone is personally aware of the transactions, and the complaint is signed by the attorney holder on behalf of the payee-complainant, there is no reason why the attorney holder cannot be examined as the complainant. We may, in this connection, refer to the decision of this Court in Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd. (2005 (2) SCC 217 ), where the scope of an attorney holder acting on behalf of the principal in a civil suit governed by Code of Civil Procedure was examined. This Court observed: "Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3 Rules 1 and 2 CPC confines only to in respect of "acts" done by them power-of-attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."(Emphasis supplied) The principle underlying the said observations will apply to cases under section 138 of the Act. In regard to business transactions of companies, partnerships or proprietary concerns, many a time the authorized agent or attorney holder may be the only person having personal knowledge of the particular transaction; and if the authorized agent or attorney-holder has signed the complaint, it will be absurd to say that he should not be examined under section 200 of the Code, and only the Secretary of the company or the partner of the firm or the proprietor of a concern, who did not have personal knowledge of the transaction, should be examined. Of course, where the cheque is drawn in the name of the proprietor of a proprietary concern, but an employee of such concern (who is not an attorney holder) has knowledge of the transaction, the payee as complainant and the employee who has knowledge of the transaction, may both have to be examined. Be that as it may. In this case we find no infirmity. | 1[ds]Referring to the decision in Associated Cement Co. Ltd. Vs. Keshvanand (1998 (1) SCC 687 ), this Court heldhas further been held that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. It has been held that there may be occasions when different persons can represent the company. It has been held that it is open to the de jure complainant company to seek permission of the court for sending any other person to represent the company in the court. Thus, even presuming that initially there was no authority, still the company can, at any stage, rectify that defect. At a subsequent stage the company can send a person who is competent to represent the company. The complaints could thus not have been quashed on thisprinciple underlying the said observations will apply to cases under section 138 of the Act. In regard to business transactions of companies, partnerships or proprietary concerns, many a time the authorized agent or attorney holder may be the only person having personal knowledge of the particular transaction; and if the authorized agent orhas signed the complaint, it will be absurd to say that he should not be examined under section 200 of the Code, and only the Secretary of the company or the partner of the firm or the proprietor of a concern, who did not have personal knowledge of the transaction, should be examined. Of course, where the cheque is drawn in the name of the proprietor of a proprietary concern, but an employee of such concern (who is not an attorney holder) has knowledge of the transaction, the payee as complainant and the employee who has knowledge of the transaction, may both have to be examined. Be that as it may. In this case we find noattorney holder is the agent of the grantor. When the grantor authorizes the Attorney Holder to initiate legal proceedings and the attorney holder accordingly initiates legal proceedings, he does so as the agent of the grantor and the initiation is by the grantor represented by his attorney holder, and not by the attorney holder in his personal capacity. Therefore where the payee is a proprietary concern, the complaint can be filed : (i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the payee; (ii) The proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorneyholder under a power of attorney executed by the sole proprietor. It follows that in this case the complaint could have been validly filed by describing the complainant in any one of the following four methodsShankara Rao, sole proprietor of M/s. Shankar Finance &Shankar Finance & Investments a sole proprietary concern represented by its proprietor Atmakuri ShankaraShankara Rao, sole proprietor of M/s. Shankar Finance &Investments, represented by his Attorney Holder ThamakShankar Finance & Investments, a proprietary concern of Atmakuri Shankara Rao, represented by his Attorney Holder Thamadawould have been improper is for the Attorney holder Thamada Satyanarayana to file the complaint in his own name as if he was the complainant.10. This Court has always recognized that the power of attorney holder can initiate criminal proceedings on behalf of his Principal. In Ram Chander Prasad Sharma Vs. State of Bihar and Anr. (AIR 1967 SC 349 ), the prosecution was commenced in regard to tampering of electric meter seals, with a charge sheet submitted by the police after investigation on a first information report by one Bhattacharya, Mains Superintendent of Patna Electric Supply Co. (PES Co. for short). An objection was raised by the accused that the prosecution was incompetent as it was not launched by a person competent to do so.The assumption of the High Court that where the payee is a proprietary concern, the complaint can be signed only by the proprietor of the proprietary concern and not by a Power of Attorney holder of the proprietor, is not sound. It is not in dispute that in this case a power of attorney has been granted by Atmakuri Shankara Rao, as Proprietor of M/s Shankar Finance & Investments in favour of Thamada Satyanarayana and the same was produced along with thesaid description is proper and therefore, the complaint has been duly filed by the payee.12. The High Court has referred to the fact that the sworn statement before the learned Magistrate was of the attorney holder of the payee and not by the payee in person. According to the tenor of the order of the High Court, this was also irregular. But we find nothing irregular in such a procedure. It is now well settled that the object of section 200 of the Code in providing for examination of the complainant and his witnesses by the court is to satisfy itself about the existence of a prima facie case against the person accused of the offence and to ensure that such person is not harassed by false and vexatious complaints by issue of process; (See Nirmaljit Singh Hoon Vs. State of West Bengal1973 (3) SCC 753 ). Where the proprietor of the proprietary concern has personal knowledge of the transaction and the proprietor has signed the complaint, he has to be examined under section 200 of the Code. A power of attorney holder of the complainant who does not have personal knowledge, cannot be examined. But where the attorney holder of the complainant is in charge of the business of the payeecomplainant and the Attorney holder alone is personally aware of the transactions, and the complaint is signed by the attorney holder on behalf of thethere is no reason why the attorney holder cannot be examined as the complainant. We may, in this connection, refer to the decision of this Court in Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd. (2005 (2) SCC 217 ), where the scope of an attorney holder acting on behalf of the principal in a civil suit governed by Code of Civil Procedure wase underlying the said observations will apply to cases under section 138 of the Act. In regard to business transactions of companies, partnerships or proprietary concerns, many a time the authorized agent or attorney holder may be the only person having personal knowledge of the particular transaction; and if the authorized agent orhas signed the complaint, it will be absurd to say that he should not be examined under section 200 of the Code, and only the Secretary of the company or the partner of the firm or the proprietor of a concern, who did not have personal knowledge of the transaction, should be examined. Of course, where the cheque is drawn in the name of the proprietor of a proprietary concern, but an employee of such concern (who is not an attorney holder) has knowledge of the transaction, the payee as complainant and the employee who has knowledge of the transaction, may both have to be examined. Be that as it may. In this case we find no | 1 | 2,970 | 1,308 | ### 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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after investigation on a first information report by one Bhattacharya, Mains Superintendent of Patna Electric Supply Co. (PES Co. for short). An objection was raised by the accused that the prosecution was incompetent as it was not launched by a person competent to do so. The said objection was based on section 50 of the Indian Electricity Act, 1910, which provided that no prosecution shall be instituted against any person for any offence against that Act or any rule, licence or order thereunder, except at the instance of the Government or an Electric Inspector, or of a person aggrieved by the same. This Court held : "... The P.E.S. Co., however, is a body corporate and must act only through its directors or officers. Here we have the evidence of Ramaswami to the effect that he held a general power of attorney from the P.E.S. Co., and that he was specifically empowered thereunder to act on behalf of P.E.S. Co., in all legal proceedings. The evidence shows that it was at his instance that Bhattacharya launched that first information report and, therefore, it would follow that the law was set in motion by the "person aggrieved". The objection based on Section 50 must, therefore, be held to be untenable."(emphasis supplied) 11. The assumption of the High Court that where the payee is a proprietary concern, the complaint can be signed only by the proprietor of the proprietary concern and not by a Power of Attorney holder of the proprietor, is not sound. It is not in dispute that in this case a power of attorney has been granted by Atmakuri Shankara Rao, as Proprietor of M/s Shankar Finance & Investments in favour of Thamada Satyanarayana and the same was produced along with the complaint. The description of the complainant is as under : "M/s Shankar Finance and Investments, (a proprietary concern of Sri Atmakuri Sankara Rao S/o Late Sri A. B. Rama Murthy, Hindu, aged about 65 years), having its office at Flat No.3B, Third Floor, Maharaja Towers. Vishakhapatnam - 3 represented by its Power of Attorney Holder Sri Thamada Satyanarayana, S/o Late Adinarayana, Hindu, aged 50 years, Service, residing at MIG-B-230, Sagarnagar, VUDA Layout, Vishakhapatnam - 43." The said description is proper and therefore, the complaint has been duly filed by the payee.12. The High Court has referred to the fact that the sworn statement before the learned Magistrate was of the attorney holder of the payee and not by the payee in person. According to the tenor of the order of the High Court, this was also irregular. But we find nothing irregular in such a procedure. It is now well settled that the object of section 200 of the Code in providing for examination of the complainant and his witnesses by the court is to satisfy itself about the existence of a prima facie case against the person accused of the offence and to ensure that such person is not harassed by false and vexatious complaints by issue of process; (See Nirmaljit Singh Hoon Vs. State of West Bengal - 1973 (3) SCC 753 ). Where the proprietor of the proprietary concern has personal knowledge of the transaction and the proprietor has signed the complaint, he has to be examined under section 200 of the Code. A power of attorney holder of the complainant who does not have personal knowledge, cannot be examined. But where the attorney holder of the complainant is in charge of the business of the payee- complainant and the Attorney holder alone is personally aware of the transactions, and the complaint is signed by the attorney holder on behalf of the payee-complainant, there is no reason why the attorney holder cannot be examined as the complainant. We may, in this connection, refer to the decision of this Court in Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd. (2005 (2) SCC 217 ), where the scope of an attorney holder acting on behalf of the principal in a civil suit governed by Code of Civil Procedure was examined. This Court observed: "Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3 Rules 1 and 2 CPC confines only to in respect of "acts" done by them power-of-attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."(Emphasis supplied) The principle underlying the said observations will apply to cases under section 138 of the Act. In regard to business transactions of companies, partnerships or proprietary concerns, many a time the authorized agent or attorney holder may be the only person having personal knowledge of the particular transaction; and if the authorized agent or attorney-holder has signed the complaint, it will be absurd to say that he should not be examined under section 200 of the Code, and only the Secretary of the company or the partner of the firm or the proprietor of a concern, who did not have personal knowledge of the transaction, should be examined. Of course, where the cheque is drawn in the name of the proprietor of a proprietary concern, but an employee of such concern (who is not an attorney holder) has knowledge of the transaction, the payee as complainant and the employee who has knowledge of the transaction, may both have to be examined. Be that as it may. In this case we find no infirmity.
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knowledge of the particular transaction; and if the authorized agent orhas signed the complaint, it will be absurd to say that he should not be examined under section 200 of the Code, and only the Secretary of the company or the partner of the firm or the proprietor of a concern, who did not have personal knowledge of the transaction, should be examined. Of course, where the cheque is drawn in the name of the proprietor of a proprietary concern, but an employee of such concern (who is not an attorney holder) has knowledge of the transaction, the payee as complainant and the employee who has knowledge of the transaction, may both have to be examined. Be that as it may. In this case we find noattorney holder is the agent of the grantor. When the grantor authorizes the Attorney Holder to initiate legal proceedings and the attorney holder accordingly initiates legal proceedings, he does so as the agent of the grantor and the initiation is by the grantor represented by his attorney holder, and not by the attorney holder in his personal capacity. Therefore where the payee is a proprietary concern, the complaint can be filed : (i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the payee; (ii) The proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and (iii) the proprietor or the proprietary concern represented by the attorneyholder under a power of attorney executed by the sole proprietor. It follows that in this case the complaint could have been validly filed by describing the complainant in any one of the following four methodsShankara Rao, sole proprietor of M/s. Shankar Finance &Shankar Finance & Investments a sole proprietary concern represented by its proprietor Atmakuri ShankaraShankara Rao, sole proprietor of M/s. Shankar Finance &Investments, represented by his Attorney Holder ThamakShankar Finance & Investments, a proprietary concern of Atmakuri Shankara Rao, represented by his Attorney Holder Thamadawould have been improper is for the Attorney holder Thamada Satyanarayana to file the complaint in his own name as if he was the complainant.10. This Court has always recognized that the power of attorney holder can initiate criminal proceedings on behalf of his Principal. In Ram Chander Prasad Sharma Vs. State of Bihar and Anr. (AIR 1967 SC 349 ), the prosecution was commenced in regard to tampering of electric meter seals, with a charge sheet submitted by the police after investigation on a first information report by one Bhattacharya, Mains Superintendent of Patna Electric Supply Co. (PES Co. for short). An objection was raised by the accused that the prosecution was incompetent as it was not launched by a person competent to do so.The assumption of the High Court that where the payee is a proprietary concern, the complaint can be signed only by the proprietor of the proprietary concern and not by a Power of Attorney holder of the proprietor, is not sound. It is not in dispute that in this case a power of attorney has been granted by Atmakuri Shankara Rao, as Proprietor of M/s Shankar Finance & Investments in favour of Thamada Satyanarayana and the same was produced along with thesaid description is proper and therefore, the complaint has been duly filed by the payee.12. The High Court has referred to the fact that the sworn statement before the learned Magistrate was of the attorney holder of the payee and not by the payee in person. According to the tenor of the order of the High Court, this was also irregular. But we find nothing irregular in such a procedure. It is now well settled that the object of section 200 of the Code in providing for examination of the complainant and his witnesses by the court is to satisfy itself about the existence of a prima facie case against the person accused of the offence and to ensure that such person is not harassed by false and vexatious complaints by issue of process; (See Nirmaljit Singh Hoon Vs. State of West Bengal1973 (3) SCC 753 ). Where the proprietor of the proprietary concern has personal knowledge of the transaction and the proprietor has signed the complaint, he has to be examined under section 200 of the Code. A power of attorney holder of the complainant who does not have personal knowledge, cannot be examined. But where the attorney holder of the complainant is in charge of the business of the payeecomplainant and the Attorney holder alone is personally aware of the transactions, and the complaint is signed by the attorney holder on behalf of thethere is no reason why the attorney holder cannot be examined as the complainant. We may, in this connection, refer to the decision of this Court in Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd. (2005 (2) SCC 217 ), where the scope of an attorney holder acting on behalf of the principal in a civil suit governed by Code of Civil Procedure wase underlying the said observations will apply to cases under section 138 of the Act. In regard to business transactions of companies, partnerships or proprietary concerns, many a time the authorized agent or attorney holder may be the only person having personal knowledge of the particular transaction; and if the authorized agent orhas signed the complaint, it will be absurd to say that he should not be examined under section 200 of the Code, and only the Secretary of the company or the partner of the firm or the proprietor of a concern, who did not have personal knowledge of the transaction, should be examined. Of course, where the cheque is drawn in the name of the proprietor of a proprietary concern, but an employee of such concern (who is not an attorney holder) has knowledge of the transaction, the payee as complainant and the employee who has knowledge of the transaction, may both have to be examined. Be that as it may. In this case we find no
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Travancore Sugars And Chemicals Ltd Vs. Commissioner Of Income-Tax Kerala | to her under the agreement. The question arose whether the amount which the lady received in lieu of the oil was annual profit or gain from any other source and the Appellate Court in Canada held that it was not so, but was a capital receipt. On appeal the Judicial Committee agreed with the Appellate Court in Canada that the case was not without its difficulties, but in the end they said that they were not prepared to differ from the view of the transaction which an eminent Judge like Newcombe, J. had taken and with which all his colleagues had agreed. The decision of the Judicial Committee turned on special facts of that case, viz., that lady had bargained to receive her share in oil and that there could be no profit or gain out of the transaction of that kind. The case was an exceptional one and the ratio of that decision cannot be applied to the present case where the facts are manifestly different. We may, however, refer to the decision in Jones v. Commrs. of Inland Revenue, (1920) 1 KB 711 where property was conveyed in consideration of periodical payments, the payment being a share of the profits of the business. In that case, a person sold his interest in certain inventions and letters patent for ? 750 in cash and a percentage, called a royalty, payable for ten years on the sale of all machines constructed under the patent. Of the sum of ?750, $ 300 was paid in cash, but the payment of the balance was secured by providing that it would have to be paid by way of 5 per cent on the sale of the machines. It was conceded by the Revenue that this 5 per cent was not to be included in computing the total income of the transferor. A question having arisen with regard to the further 10 per cent. Rowlatt, J. observed as follows:"The property was sold for a certain sum, and in addition the vendor took an annual sum which was dependent upon the volume of business done, that is to say, he took something which arose or fell with the chances of the business. When a man does that he takes an income --- it is in the nature of income." The principle of this case applies to the present case where the facts are closely parallel. 6. It is not however, possible for us to finally determine this appeal because the High Court has not dealt with the other questions arising in this reference. Even if the payment of the commission to the Government by the assessee is not capital but revenue payments certain other questions arise for consideration in this case. In the first place, it has to be determined whether the appellant is right in his argument that the payment of the commission is tantamount to diversion of profits by a paramount title. In this connection reliance was placed on behalf of the appellant upon the decision in Raja Bejoy Singh Dudhuria v. Commr. of Income-tax, Bengal, (l933) 1 ITR 135 : (AIR 1933 PC 145 ) in which the assessee succeeded to the family ancestral estate on the death of his father. Subsequently his step-mother brought a suit for maintenance against him in which a consent decree was made directing the assessee to make a monthly payment of a fixed sum to his step-mother and declaring that the maintenance was a charge on the ancestral estate in the hands of the assessee. In computing his income, the assessee claimed that the amounts paid by him to the stepmother under the decree should be excluded. It was held by the Judicial Committee that the sums paid by the assessee to his step-mother were not income of the assessee at all and that the decree of the court by charging the appellants whole resources with a specific payment to his step-mother had to that extent diverted his income from him and had directed it to his step-mother, and to that extent what he received for her was not his income. It was not a case of the application by the appellant or part of his income in a particular way, it was rather the allocation of a sum out of his revenue before it became income in his hands. Reliance was also placed on the decision of this Court in Poona Electric Supply Co. Ltd. v. Commr. of Income-tax, Bombay City, (1965) 57 ITR 521 : (AIR 1966 SC 30 ) in which a distinction was drawn between real profits ascertained on commercial principles and profits fixed by statute for a specified purpose. In the second place, the respondent has contended that the transaction should be treated as a joint venture with an agreement to share profits between the appellant and the Government. In the third place, the High Court has to examine whether the requirements of S. 10 (2) (xv) have been satisfied in this case. On behalf of the respondent the argument was presented that the payment of commission was a payment out of the profits of the appellant on condition of profits being earned and that it was not a payment made to earn profits. Reference was made to the decision of the Judicial Committee in 5 ITC 363: (AIR 1931 PC 165 ). The opposite view-point was presented on behalf of the appellant and it was argued that the payment of the commission was a payment wholly and exclusively laid out for the purpose of business and reference was made to the decision of the judicial Committee in Indian Radio and Cable Communications Co. Ltd. v. Commr. of Income-tax, (1937) 5 ITR 270 : (AIR 1937 PC 189 ) and to the decision of the Court of Appeal in 1939-7 ITR 101 . 7. It is necessary that the High Court should consider all these aspects of the case before furnishing an answer to the question of law referred to it. | 1[ds]In view of these facts we are of opinion that the payment of the annual sum of Rs. 42,480 in the present case is not in the nature of capital expenditure but is in the nature of revenue expenditure and the judgment of the High Court of Kerala on this point must be overruled. The view that we have expressed is borne out by the decision of the Court of Appeal in Commr. of Inland Revenue v. 36/49 Holdings Ltd. [In Liquidation], (1943) 25 Tax Cas 173. In that case, an undertaking was sold and the price consisted of fixed amount and a certain commission payable for an indefinite period. The consideration in the particular agreement which the Court of Appeal had to consider, which was in addition to the fixed amount payable by the purchaser to the vendor, was 1 shilling for each bicycle not being mechanically propelled bicycle without deduction and? 1 for each mechanically propelled bicycle without deduction, and this was to be paid on the turnover by the purchasing company6. It is not however, possible for us to finally determine this appeal because the High Court has not dealt with the other questions arising in this reference. Even if the payment of the commission to the Government by the assessee is not capital but revenue payments certain other questions arise for consideration in this case. In the first place, it has to be determined whether the appellant is right in his argument that the payment of the commission is tantamount to diversion of profits by a paramount title. In this connection reliance was placed on behalf of the appellant upon the decision in Raja Bejoy Singh Dudhuria v. Commr. of Income-tax, Bengal, (l933) 1 ITR 135 : (AIR 1933 PC 145 ) in which the assessee succeeded to the family ancestral estate on the death of his father. Subsequently his step-mother brought a suit for maintenance against him in which a consent decree was made directing the assessee to make a monthly payment of a fixed sum to his step-mother and declaring that the maintenance was a charge on the ancestral estate in the hands of the assessee. In computing his income, the assessee claimed that the amounts paid by him to the stepmother under the decree should be excluded. It was held by the Judicial Committee that the sums paid by the assessee to his step-mother were not income of the assessee at all and that the decree of the court by charging the appellants whole resources with a specific payment to his step-mother had to that extent diverted his income from him and had directed it to his step-mother, and to that extent what he received for her was not his income. It was not a case of the application by the appellant or part of his income in a particular way, it was rather the allocation of a sum out of his revenue before it became income in his hands. Reliance was also placed on the decision of this Court in Poona Electric Supply Co. Ltd. v. Commr. of Income-tax, Bombay City, (1965) 57 ITR 521 : (AIR 1966 SC 30 ) in which a distinction was drawn between real profits ascertained on commercial principles and profits fixed by statute for a specified purpose. In the second place, the respondent has contended that the transaction should be treated as a joint venture with an agreement to share profits between the appellant and the Government. In the third place, the High Court has to examine whether the requirements of S. 10 (2) (xv) have been satisfied in this case. On behalf of the respondent the argument was presented that the payment of commission was a payment out of the profits of the appellant on condition of profits being earned and that it was not a payment made to earn profits. Reference was made to the decision of the Judicial Committee in 5 ITC 363: (AIR 1931 PC 165 ). The opposite view-point was presented on behalf of the appellant and it was argued that the payment of the commission was a payment wholly and exclusively laid out for the purpose of business and reference was made to the decision of the judicial Committee in Indian Radio and Cable Communications Co. Ltd. v. Commr. of Income-tax, (1937) 5 ITR 270 : (AIR 1937 PC 189 ) and to the decision of the Court of Appeal in 1939-7 ITR 101 7. It is necessary that the High Court should consider all these aspects of the case before furnishing an answer to the question of law referred to it4. It is often difficult, in any particular case, to decide and determine whether a particular expenditure is in the nature of capital expenditure or in the nature of revenue expenditure. It is not easy to distinguish whether an agreement is for the payment of price stipulated in instalments or for making annual payments in the nature of income. The Court has to look not only into the documents but also at the surrounding circumstances so as to arrive at a decision as to what was the real nature of the transaction from the commercial point of view. No single test of universal application can be discovered for a solution of the question. The name which the parties may give to the transaction which is the source of the receipt and the characterization of the receipt by them are of little consequence. The Court has to ascertain the true nature and character of the transaction from the covenants of the agreement tested in the light of surrounding circumstances. Examining the transaction from this point of view it is clear in the present case that the consideration for the sale of the three undertakings in favour of the appellant was : (1) the cash consideration mentioned in the principal agreement, viz., Cls. 3, 4 (a) and 5(a), and (2) the consideration that Government shall be entitled to twenty per cent of the net profit earned by the appellant in every year subject to a maximum of Rs. 40,000 per annum. With regard to the second part of consideration there are three important points to be noticed. In the first place, the payment of commission of twenty per cent on the net profits by the appellant in favour of the Government is for an indefinite period and has no limitation of time attached to it. In the second place, the payment of the commission is related to the annual profits which flow from the trading activities of they and the payment has no relation to the capital value of the assets. In the third place, the annual payment of 20 per cent commission every year is not related to or tied up, in any way, to any fixed sum agreed between the parties as part of the purchase price of the three undertakings. There is no reference to any capital sum in this part of the agreement. On the contrary, the very nature of the payments excludes the idea that any connection with the capital sum was intended by the parties. It is true that the purchaser may buy a running concern and fix a certain price and the price may be payable in a lump sum or may be payable by instalments. The mere fact that the capital sum is payable by instalments spread over a certain length of time, will not convert the nature of that payment from the capital expenditure into a revenue expenditure, but the payment of instalments in such a case would always have some relationship to the actual price fixed for the sale of the particular undertaking. As we have already mentioned, there is no specific sum fixed in the present case as an additional amount of price payable in addition to the cash consideration and payable by instalments or by any particular method5. On behalf of the respondent Mr. S.T. Desai referred to the decision of the Judicial Committee in Minister of National Revenue v. Catherine Spooner, 1933 AC 684: (AIR 1933 PC 211 ). In that case, the assessee had sold all her right, title and interest in some land which she owned in freehold to company in consideration of a certain sum in cash, of certain shares in the company and an agreement to deliver to her 10 per cent of oil produced from the land. The transferee company, after it had commenced operations, struck oil and raised some of it in the year of account , but did not deliver to the assessee any part of the oil produced. The transferee company sold the whole of it and paid over 10 per cent of the gross proceeds to the assessee which she accepted in satisfaction of the royalties reserved to her under the agreement.The question arose whether the amount which the lady received in lieu of the oil was annual profit or gain from any other source and the Appellate Court in Canada held that it was not so, but was a capital receipt. On appeal the Judicial Committee agreed with the Appellate Court in Canada that the case was not without its difficulties, but in the end they said that they were not prepared to differ from the view of the transaction which an eminent Judge like Newcombe, J. had taken and with which all his colleagues had agreed. The decision of the Judicial Committee turned on special facts of that case, viz., that lady had bargained to receive her share in oil and that there could be no profit or gain out of the transaction of that kind. The case was an exceptional one and the ratio of that decision cannot be applied to the present case where the facts are manifestly different. We may, however, refer to the decision inJones v. Commrs. of Inland Revenue, (1920) 1 KB 711where property was conveyed in consideration of periodical payments, the payment being a share of the profits of the business. In that case, a person sold his interest in certain inventions and letters patent for ? 750 in cash and a percentage, called a royalty, payable for ten years on the sale of all machines constructed under the patent. Of the sum of ?750, $ 300 was paid in cash, but the payment of the balance was secured by providing that it would have to be paid by way of 5 per cent on the sale of the machines. It was conceded by the Revenue that this 5 per cent was not to be included in computing the total income of the transferor. A question having arisen with regard to the further 10 per cent. Rowlatt, J. observed as follows:"The property was sold for a certain sum, and in addition the vendor took an annual sum which was dependent upon the volume of business done, that is to say, he took something which arose or fell with the chances of the business. When a man does that he takes an incomeit is in the nature of income."The principle of this case applies to the present case where the facts are closely parallel. | 1 | 4,303 | 2,021 | ### 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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to her under the agreement. The question arose whether the amount which the lady received in lieu of the oil was annual profit or gain from any other source and the Appellate Court in Canada held that it was not so, but was a capital receipt. On appeal the Judicial Committee agreed with the Appellate Court in Canada that the case was not without its difficulties, but in the end they said that they were not prepared to differ from the view of the transaction which an eminent Judge like Newcombe, J. had taken and with which all his colleagues had agreed. The decision of the Judicial Committee turned on special facts of that case, viz., that lady had bargained to receive her share in oil and that there could be no profit or gain out of the transaction of that kind. The case was an exceptional one and the ratio of that decision cannot be applied to the present case where the facts are manifestly different. We may, however, refer to the decision in Jones v. Commrs. of Inland Revenue, (1920) 1 KB 711 where property was conveyed in consideration of periodical payments, the payment being a share of the profits of the business. In that case, a person sold his interest in certain inventions and letters patent for ? 750 in cash and a percentage, called a royalty, payable for ten years on the sale of all machines constructed under the patent. Of the sum of ?750, $ 300 was paid in cash, but the payment of the balance was secured by providing that it would have to be paid by way of 5 per cent on the sale of the machines. It was conceded by the Revenue that this 5 per cent was not to be included in computing the total income of the transferor. A question having arisen with regard to the further 10 per cent. Rowlatt, J. observed as follows:"The property was sold for a certain sum, and in addition the vendor took an annual sum which was dependent upon the volume of business done, that is to say, he took something which arose or fell with the chances of the business. When a man does that he takes an income --- it is in the nature of income." The principle of this case applies to the present case where the facts are closely parallel. 6. It is not however, possible for us to finally determine this appeal because the High Court has not dealt with the other questions arising in this reference. Even if the payment of the commission to the Government by the assessee is not capital but revenue payments certain other questions arise for consideration in this case. In the first place, it has to be determined whether the appellant is right in his argument that the payment of the commission is tantamount to diversion of profits by a paramount title. In this connection reliance was placed on behalf of the appellant upon the decision in Raja Bejoy Singh Dudhuria v. Commr. of Income-tax, Bengal, (l933) 1 ITR 135 : (AIR 1933 PC 145 ) in which the assessee succeeded to the family ancestral estate on the death of his father. Subsequently his step-mother brought a suit for maintenance against him in which a consent decree was made directing the assessee to make a monthly payment of a fixed sum to his step-mother and declaring that the maintenance was a charge on the ancestral estate in the hands of the assessee. In computing his income, the assessee claimed that the amounts paid by him to the stepmother under the decree should be excluded. It was held by the Judicial Committee that the sums paid by the assessee to his step-mother were not income of the assessee at all and that the decree of the court by charging the appellants whole resources with a specific payment to his step-mother had to that extent diverted his income from him and had directed it to his step-mother, and to that extent what he received for her was not his income. It was not a case of the application by the appellant or part of his income in a particular way, it was rather the allocation of a sum out of his revenue before it became income in his hands. Reliance was also placed on the decision of this Court in Poona Electric Supply Co. Ltd. v. Commr. of Income-tax, Bombay City, (1965) 57 ITR 521 : (AIR 1966 SC 30 ) in which a distinction was drawn between real profits ascertained on commercial principles and profits fixed by statute for a specified purpose. In the second place, the respondent has contended that the transaction should be treated as a joint venture with an agreement to share profits between the appellant and the Government. In the third place, the High Court has to examine whether the requirements of S. 10 (2) (xv) have been satisfied in this case. On behalf of the respondent the argument was presented that the payment of commission was a payment out of the profits of the appellant on condition of profits being earned and that it was not a payment made to earn profits. Reference was made to the decision of the Judicial Committee in 5 ITC 363: (AIR 1931 PC 165 ). The opposite view-point was presented on behalf of the appellant and it was argued that the payment of the commission was a payment wholly and exclusively laid out for the purpose of business and reference was made to the decision of the judicial Committee in Indian Radio and Cable Communications Co. Ltd. v. Commr. of Income-tax, (1937) 5 ITR 270 : (AIR 1937 PC 189 ) and to the decision of the Court of Appeal in 1939-7 ITR 101 . 7. It is necessary that the High Court should consider all these aspects of the case before furnishing an answer to the question of law referred to it.
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from the commercial point of view. No single test of universal application can be discovered for a solution of the question. The name which the parties may give to the transaction which is the source of the receipt and the characterization of the receipt by them are of little consequence. The Court has to ascertain the true nature and character of the transaction from the covenants of the agreement tested in the light of surrounding circumstances. Examining the transaction from this point of view it is clear in the present case that the consideration for the sale of the three undertakings in favour of the appellant was : (1) the cash consideration mentioned in the principal agreement, viz., Cls. 3, 4 (a) and 5(a), and (2) the consideration that Government shall be entitled to twenty per cent of the net profit earned by the appellant in every year subject to a maximum of Rs. 40,000 per annum. With regard to the second part of consideration there are three important points to be noticed. In the first place, the payment of commission of twenty per cent on the net profits by the appellant in favour of the Government is for an indefinite period and has no limitation of time attached to it. In the second place, the payment of the commission is related to the annual profits which flow from the trading activities of they and the payment has no relation to the capital value of the assets. In the third place, the annual payment of 20 per cent commission every year is not related to or tied up, in any way, to any fixed sum agreed between the parties as part of the purchase price of the three undertakings. There is no reference to any capital sum in this part of the agreement. On the contrary, the very nature of the payments excludes the idea that any connection with the capital sum was intended by the parties. It is true that the purchaser may buy a running concern and fix a certain price and the price may be payable in a lump sum or may be payable by instalments. The mere fact that the capital sum is payable by instalments spread over a certain length of time, will not convert the nature of that payment from the capital expenditure into a revenue expenditure, but the payment of instalments in such a case would always have some relationship to the actual price fixed for the sale of the particular undertaking. As we have already mentioned, there is no specific sum fixed in the present case as an additional amount of price payable in addition to the cash consideration and payable by instalments or by any particular method5. On behalf of the respondent Mr. S.T. Desai referred to the decision of the Judicial Committee in Minister of National Revenue v. Catherine Spooner, 1933 AC 684: (AIR 1933 PC 211 ). In that case, the assessee had sold all her right, title and interest in some land which she owned in freehold to company in consideration of a certain sum in cash, of certain shares in the company and an agreement to deliver to her 10 per cent of oil produced from the land. The transferee company, after it had commenced operations, struck oil and raised some of it in the year of account , but did not deliver to the assessee any part of the oil produced. The transferee company sold the whole of it and paid over 10 per cent of the gross proceeds to the assessee which she accepted in satisfaction of the royalties reserved to her under the agreement.The question arose whether the amount which the lady received in lieu of the oil was annual profit or gain from any other source and the Appellate Court in Canada held that it was not so, but was a capital receipt. On appeal the Judicial Committee agreed with the Appellate Court in Canada that the case was not without its difficulties, but in the end they said that they were not prepared to differ from the view of the transaction which an eminent Judge like Newcombe, J. had taken and with which all his colleagues had agreed. The decision of the Judicial Committee turned on special facts of that case, viz., that lady had bargained to receive her share in oil and that there could be no profit or gain out of the transaction of that kind. The case was an exceptional one and the ratio of that decision cannot be applied to the present case where the facts are manifestly different. We may, however, refer to the decision inJones v. Commrs. of Inland Revenue, (1920) 1 KB 711where property was conveyed in consideration of periodical payments, the payment being a share of the profits of the business. In that case, a person sold his interest in certain inventions and letters patent for ? 750 in cash and a percentage, called a royalty, payable for ten years on the sale of all machines constructed under the patent. Of the sum of ?750, $ 300 was paid in cash, but the payment of the balance was secured by providing that it would have to be paid by way of 5 per cent on the sale of the machines. It was conceded by the Revenue that this 5 per cent was not to be included in computing the total income of the transferor. A question having arisen with regard to the further 10 per cent. Rowlatt, J. observed as follows:"The property was sold for a certain sum, and in addition the vendor took an annual sum which was dependent upon the volume of business done, that is to say, he took something which arose or fell with the chances of the business. When a man does that he takes an incomeit is in the nature of income."The principle of this case applies to the present case where the facts are closely parallel.
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Imax Corporation Vs. M/S E-City Entertainment (I) P.Ltd | commercial arbitrations held out of India provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case the laws or rules chosen by the parties would prevail. Any provision, in Part I, which is contrary to or excluded by that law or rules will not apply."This view has been followed in several cases, See Venture Global Engg. v. Satyam Computer Services Ltd., (2008) 4 SCC 190 , Videocon Industries Limited v. Union of India, (2011) 6 SCC 161 , Dozco India (P) Ltd. v. Doosan Infracore Co. Ltd., (2011) 6 SCC 179 , Cauvery Coffee Traders v. Horner Resources (International) Co. Ltd., (2011) 10 SCC 420 , Reliance Industries Ltd. (supra) and Sakuma Exports Ltd. (supra), Union of India v. Reliance Industries Ltd., (2015) 10 SCC 213 , Harmony Innovation Shipping Ltd. (supra) and Eitzen Bulk A/S v. Ashapura Minechem Ltd., (2016) 11 SCC 508. The relevant clause in these cases was undoubtedly different in that, the seat of arbitration outside India was specified in the clause itself. However, we have found that the clause in this case had the effect of an agreement to have the seat of arbitration outside India, as chosen by the ICC, and as agreed to by the parties.28. On a true construction of Clause 14 in this case, there is no doubt the parties have agreed to exclude Part-I by agreeing that the arbitration would be conducted in accordance with the ICC Rules. The parties were undoubtedly conscious that the ICC could choose a venue for arbitration outside India. That in our view is sufficient to infer that the parties agreed to exclude Part-I. The ICC could well have chosen a venue in India. The possibility that ICC could have chosen India is not a counter indication of this inference. It could also be said that the decision to exclude the applicability of Part-I was taken when the ICC chose London after consulting the parties. Either way Part-I was excluded.29. The view that it is the law of the country where arbitration is held that will govern the arbitration and matters related thereto such as a challenge to the award is well entrenched. In Dozco India (P) Ltd. (supra), this Court observed:-"In the absence of express agreement, there is a strong prima facie presumption that the parties intend the curial law to be the law of the `seat of the arbitration i.e. the place at which the arbitration is to be conducted, on the ground that that is the country most closely connected with the proceedings. So in order to determine the curial law in the absence of an express choice by the parties it is first necessary to determine the seat of the arbitration, by construing the agreement to arbitrate."30. The relationship between the seat of arbitration and the law governing arbitration is an integral one. The seat of arbitration is defined as the juridical seat of arbitration designated by the parties, or by the arbitral institution or by the arbitrators themselves as the case may be. It is pertinent to refer to the following passage from Redfern and Hunter (supra):-"This intrnded to be its centre of gravity."Further, in the same work on International Arbitration by Redfern and Hunter (supra), the following passage emphasizes the connection between the lex arbitri and lex fori:-"Parties may well choose a particular place of arbitration precisely because its lex arbitri is one which they find attractive. Nevertheless, once a place of arbitration has been chosen, it brings with it its own law. If that law contains provisions that are mandatory so far as arbitration are concerned, those provisions must be obeyed. It is not a matter of choice any more than the notional motorist is free to choose which local traffic laws to obey and which to disregard."Thus, it is clear that the place of arbitration determines the law that will apply to the arbitration and related matters like challenges to the award etc, see Eitzen Bulk A/S (supra).31. The significant determinant in each case is the agreement of the parties as to the place of arbitration and where in fact the arbitration took place.If in pursuance of the arbitration agreement, the arbitration took place outside India, there is a clear exclusion of Part-I of the Arbitration Act. In the present case, the parties expressly agreed that the arbitration will be conducted according to the ICC Rules of Arbitration and left the place of arbitration to be chosen by the ICC. The ICC in fact, chose London as the seat of arbitration after consulting the parties. The arbitration was held in London without demur from any of the parties. All the awards i.e. the two partial final awards, and the third final award, were made in London and communicated to the parties. We find that this is a clear case of the exclusion of Part-I vide Eitzen Bulk A/S (supra), and the decisions referred to and followed therein.32. The respondent contends before us that Part-I of the award was applicable, however they themselves stated the place of arbitration to be London.It is pertinent to reproduce the relevant portion in the respondents application before the ICC while objecting to the authority of the law firms representing the appellant. It stated:-"The seat of this arbitration is London."Therefore, the two reasons for Part-I not being applicable are as follows:-(i) Parties agreed that the seat maybe outside India as may be fixed by the ICC; and(ii) It was admitted that the seat of arbitration was London and the award was made there.Therefore, there is no doubt that Part-I has no application because the parties chose and agreed to the arbitration being conducted outside India and the arbitration was in fact held outside India.33. In view of the foregoing observations, we find that the High Court committed an error in observing that the seat of arbitration itself is not a decisive factor to exclude Part-I of the Arbitration Act. | 0[ds]15. The only question that arises for consideration before us is whether the challenge to the award made by the respondent under Section 34 of the Arbitration Act is maintainable before a court in India. Clearly, if the answer is in the negative it is not necessary to decide the question of delay. Thus, we make it clear that we are not deciding where else in the world a challenge to the award would benoted the above submissions and statements made by the parties, we propose to decide the question on the construction of Clause 14 and the law governing such challenges.In this case, there is an express choice of the law governing the contract as a whole i.e. Singaporean Law.There is an express agreement that any arbitration would be governed by the ICC Rules of Arbitration. The general principle is that, in the absence of any contradictory indication, it shall be presumed that the parties have intended that the proper law of contract as well as the law governing the arbitration agreement is the same as the law of the country in which the arbitration is agreed to be held.Here, an express choice has been made by the parties regarding the conduct of arbitration, i.e., that a dispute shall be finally settled by arbitration according to the ICC Rules of Arbitration. The parties have not chosen the place of arbitration. They have simply chosen the rules that will govern the arbitration, presumably aware of the provision in the rules that the place of arbitration will be decided by the ICC vide Article 14(1) of the ICC Rules. The ICC having chosen London, leaves no doubt that the place of arbitration will attract the law of UK in all matters concerning arbitration.arbitration.24. Dr. Singhvi rightly submitted that the decisions of the court in Sakuma Exports Ltd. v. Louis Dreyfus Commodities Suisse Sa, (2015) 5 SCC 656 , Harmony Innovation Shipping Ltd. v. Gupta Coal India Ltd., (2015) 9 SCC 172 , and Reliance Industries Ltd. v. Union of India, (2014) 7 SCC 603 do not help the appellant in view of the main difference between the abovementioned cases and the present one i.e. in all these cases, the parties had specifically agreed that the seat of arbitration will be London. The arbitration clause in these cases itself specified the seat to be at London. In Reliance Industries Ltd. (supra), the agreement that the seat of arbitration would be London was incorporated in the final partial award.However, as we shall see the agreement to have the arbitration conducted by the ICC and the choice of London as the seat of arbitration has made no material difference for the purpose of exclusion of Part-I.The relevant clause in these cases was undoubtedly different in that the seat of arbitration outside India was specified in the clause itself. However, we have found that the relevant clause in the present case had the effect of an agreement to have the seat of the arbitration outside India, as chosen by the ICC and agreed to by the parties.25. We find that in the present case, the seat of arbitration has not been specified at all in the arbitration clause. There is however an agreement to have the arbitration conducted according to the ICC rules and thus a willingness that the seat of arbitration may be outside India. In any case, the parties having agreed to have the seat decided by the ICC and the ICC having chosen London after consulting the parties and the parties having abided by the decision, it must be held that upon the decision of the ICC to hold the arbitration in London, the parties agreed that the seat shall be in London for all practical purposes. Therefore, there is an agreement that the arbitration shall be held in London and thus Part-I of the Act should be excluded.On a true construction of Clause 14 in this case, there is no doubt the parties have agreed to exclude Part-I by agreeing that the arbitration would be conducted in accordance with the ICC Rules. The parties were undoubtedly conscious that the ICC could choose a venue for arbitration outside India. That in our view is sufficient to infer that the parties agreed to exclude Part-I. The ICC could well have chosen a venue in India. The possibility that ICC could have chosen India is not a counter indication of this inference. It could also be said that the decision to exclude the applicability of Part-I was taken when the ICC chose London after consulting the parties. Either way Part-I was excluded.The significant determinant in each case is the agreement of the parties as to the place of arbitration and where in fact the arbitration took place.If in pursuance of the arbitration agreement, the arbitration took place outside India, there is a clear exclusion of Part-I of the Arbitration Act. In the present case, the parties expressly agreed that the arbitration will be conducted according to the ICC Rules of Arbitration and left the place of arbitration to be chosen by the ICC. The ICC in fact, chose London as the seat of arbitration after consulting the parties. The arbitration was held in London without demur from any of the parties. All the awards i.e. the two partial final awards, and the third final award, were made in London and communicated to the parties. We find that this is a clear case of the exclusion of Part-I vide Eitzen Bulk A/S (supra), and the decisions referred to and followed therein.In view of the foregoing observations, we find that the High Court committed an error in observing that the seat of arbitration itself is not a decisive factor to exclude Part-I of the Arbitration Act. | 0 | 4,256 | 1,040 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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commercial arbitrations held out of India provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case the laws or rules chosen by the parties would prevail. Any provision, in Part I, which is contrary to or excluded by that law or rules will not apply."This view has been followed in several cases, See Venture Global Engg. v. Satyam Computer Services Ltd., (2008) 4 SCC 190 , Videocon Industries Limited v. Union of India, (2011) 6 SCC 161 , Dozco India (P) Ltd. v. Doosan Infracore Co. Ltd., (2011) 6 SCC 179 , Cauvery Coffee Traders v. Horner Resources (International) Co. Ltd., (2011) 10 SCC 420 , Reliance Industries Ltd. (supra) and Sakuma Exports Ltd. (supra), Union of India v. Reliance Industries Ltd., (2015) 10 SCC 213 , Harmony Innovation Shipping Ltd. (supra) and Eitzen Bulk A/S v. Ashapura Minechem Ltd., (2016) 11 SCC 508. The relevant clause in these cases was undoubtedly different in that, the seat of arbitration outside India was specified in the clause itself. However, we have found that the clause in this case had the effect of an agreement to have the seat of arbitration outside India, as chosen by the ICC, and as agreed to by the parties.28. On a true construction of Clause 14 in this case, there is no doubt the parties have agreed to exclude Part-I by agreeing that the arbitration would be conducted in accordance with the ICC Rules. The parties were undoubtedly conscious that the ICC could choose a venue for arbitration outside India. That in our view is sufficient to infer that the parties agreed to exclude Part-I. The ICC could well have chosen a venue in India. The possibility that ICC could have chosen India is not a counter indication of this inference. It could also be said that the decision to exclude the applicability of Part-I was taken when the ICC chose London after consulting the parties. Either way Part-I was excluded.29. The view that it is the law of the country where arbitration is held that will govern the arbitration and matters related thereto such as a challenge to the award is well entrenched. In Dozco India (P) Ltd. (supra), this Court observed:-"In the absence of express agreement, there is a strong prima facie presumption that the parties intend the curial law to be the law of the `seat of the arbitration i.e. the place at which the arbitration is to be conducted, on the ground that that is the country most closely connected with the proceedings. So in order to determine the curial law in the absence of an express choice by the parties it is first necessary to determine the seat of the arbitration, by construing the agreement to arbitrate."30. The relationship between the seat of arbitration and the law governing arbitration is an integral one. The seat of arbitration is defined as the juridical seat of arbitration designated by the parties, or by the arbitral institution or by the arbitrators themselves as the case may be. It is pertinent to refer to the following passage from Redfern and Hunter (supra):-"This intrnded to be its centre of gravity."Further, in the same work on International Arbitration by Redfern and Hunter (supra), the following passage emphasizes the connection between the lex arbitri and lex fori:-"Parties may well choose a particular place of arbitration precisely because its lex arbitri is one which they find attractive. Nevertheless, once a place of arbitration has been chosen, it brings with it its own law. If that law contains provisions that are mandatory so far as arbitration are concerned, those provisions must be obeyed. It is not a matter of choice any more than the notional motorist is free to choose which local traffic laws to obey and which to disregard."Thus, it is clear that the place of arbitration determines the law that will apply to the arbitration and related matters like challenges to the award etc, see Eitzen Bulk A/S (supra).31. The significant determinant in each case is the agreement of the parties as to the place of arbitration and where in fact the arbitration took place.If in pursuance of the arbitration agreement, the arbitration took place outside India, there is a clear exclusion of Part-I of the Arbitration Act. In the present case, the parties expressly agreed that the arbitration will be conducted according to the ICC Rules of Arbitration and left the place of arbitration to be chosen by the ICC. The ICC in fact, chose London as the seat of arbitration after consulting the parties. The arbitration was held in London without demur from any of the parties. All the awards i.e. the two partial final awards, and the third final award, were made in London and communicated to the parties. We find that this is a clear case of the exclusion of Part-I vide Eitzen Bulk A/S (supra), and the decisions referred to and followed therein.32. The respondent contends before us that Part-I of the award was applicable, however they themselves stated the place of arbitration to be London.It is pertinent to reproduce the relevant portion in the respondents application before the ICC while objecting to the authority of the law firms representing the appellant. It stated:-"The seat of this arbitration is London."Therefore, the two reasons for Part-I not being applicable are as follows:-(i) Parties agreed that the seat maybe outside India as may be fixed by the ICC; and(ii) It was admitted that the seat of arbitration was London and the award was made there.Therefore, there is no doubt that Part-I has no application because the parties chose and agreed to the arbitration being conducted outside India and the arbitration was in fact held outside India.33. In view of the foregoing observations, we find that the High Court committed an error in observing that the seat of arbitration itself is not a decisive factor to exclude Part-I of the Arbitration Act.
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15. The only question that arises for consideration before us is whether the challenge to the award made by the respondent under Section 34 of the Arbitration Act is maintainable before a court in India. Clearly, if the answer is in the negative it is not necessary to decide the question of delay. Thus, we make it clear that we are not deciding where else in the world a challenge to the award would benoted the above submissions and statements made by the parties, we propose to decide the question on the construction of Clause 14 and the law governing such challenges.In this case, there is an express choice of the law governing the contract as a whole i.e. Singaporean Law.There is an express agreement that any arbitration would be governed by the ICC Rules of Arbitration. The general principle is that, in the absence of any contradictory indication, it shall be presumed that the parties have intended that the proper law of contract as well as the law governing the arbitration agreement is the same as the law of the country in which the arbitration is agreed to be held.Here, an express choice has been made by the parties regarding the conduct of arbitration, i.e., that a dispute shall be finally settled by arbitration according to the ICC Rules of Arbitration. The parties have not chosen the place of arbitration. They have simply chosen the rules that will govern the arbitration, presumably aware of the provision in the rules that the place of arbitration will be decided by the ICC vide Article 14(1) of the ICC Rules. The ICC having chosen London, leaves no doubt that the place of arbitration will attract the law of UK in all matters concerning arbitration.arbitration.24. Dr. Singhvi rightly submitted that the decisions of the court in Sakuma Exports Ltd. v. Louis Dreyfus Commodities Suisse Sa, (2015) 5 SCC 656 , Harmony Innovation Shipping Ltd. v. Gupta Coal India Ltd., (2015) 9 SCC 172 , and Reliance Industries Ltd. v. Union of India, (2014) 7 SCC 603 do not help the appellant in view of the main difference between the abovementioned cases and the present one i.e. in all these cases, the parties had specifically agreed that the seat of arbitration will be London. The arbitration clause in these cases itself specified the seat to be at London. In Reliance Industries Ltd. (supra), the agreement that the seat of arbitration would be London was incorporated in the final partial award.However, as we shall see the agreement to have the arbitration conducted by the ICC and the choice of London as the seat of arbitration has made no material difference for the purpose of exclusion of Part-I.The relevant clause in these cases was undoubtedly different in that the seat of arbitration outside India was specified in the clause itself. However, we have found that the relevant clause in the present case had the effect of an agreement to have the seat of the arbitration outside India, as chosen by the ICC and agreed to by the parties.25. We find that in the present case, the seat of arbitration has not been specified at all in the arbitration clause. There is however an agreement to have the arbitration conducted according to the ICC rules and thus a willingness that the seat of arbitration may be outside India. In any case, the parties having agreed to have the seat decided by the ICC and the ICC having chosen London after consulting the parties and the parties having abided by the decision, it must be held that upon the decision of the ICC to hold the arbitration in London, the parties agreed that the seat shall be in London for all practical purposes. Therefore, there is an agreement that the arbitration shall be held in London and thus Part-I of the Act should be excluded.On a true construction of Clause 14 in this case, there is no doubt the parties have agreed to exclude Part-I by agreeing that the arbitration would be conducted in accordance with the ICC Rules. The parties were undoubtedly conscious that the ICC could choose a venue for arbitration outside India. That in our view is sufficient to infer that the parties agreed to exclude Part-I. The ICC could well have chosen a venue in India. The possibility that ICC could have chosen India is not a counter indication of this inference. It could also be said that the decision to exclude the applicability of Part-I was taken when the ICC chose London after consulting the parties. Either way Part-I was excluded.The significant determinant in each case is the agreement of the parties as to the place of arbitration and where in fact the arbitration took place.If in pursuance of the arbitration agreement, the arbitration took place outside India, there is a clear exclusion of Part-I of the Arbitration Act. In the present case, the parties expressly agreed that the arbitration will be conducted according to the ICC Rules of Arbitration and left the place of arbitration to be chosen by the ICC. The ICC in fact, chose London as the seat of arbitration after consulting the parties. The arbitration was held in London without demur from any of the parties. All the awards i.e. the two partial final awards, and the third final award, were made in London and communicated to the parties. We find that this is a clear case of the exclusion of Part-I vide Eitzen Bulk A/S (supra), and the decisions referred to and followed therein.In view of the foregoing observations, we find that the High Court committed an error in observing that the seat of arbitration itself is not a decisive factor to exclude Part-I of the Arbitration Act.
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Union Of India Vs. M/S Nitdip Text. Processors (P)Ltd | to give incentives and lay down the rates of taxation, benefits or concessions. In the field of taxation if the test of Article 14 is satisfied by generality of provisions the courts would not substitute judicial wisdom for legislative wisdom. 43) In Aashirwad Films v. Union of India, (2007) 6 SCC 624 , this Court has held: 14. It has been accepted without dispute that taxation laws must also pass the test of Article 14 of the Constitution of India. It has been laid down in a large number of decisions of this Court that a taxation statute for the reasons of functional expediency and even otherwise, can pick and choose to tax some. Importantly, there is a rider operating on this wide power to tax and even discriminate in taxation that the classification thus chosen must be reasonable. The extent of reasonability of any taxation statute lies in its efficiency to achieve the object sought to be achieved by the statute. Thus, the classification must bear a nexus with the object sought to be achieved. (See Moopil Nair v. State of Kerala, East India Tobacco Co. v. State of A.P., N. Venugopala Ravi Varma Rajah v. Union of India, Asstt. Director of Inspection Investigation v. A.B. Shanthi and Associated Cement Companies Ltd. v. Govt. of A.P.) 44) In Jai Vijai Metal Udyog Private Limited, Industrial Estate, Varanasi v. Commissioner, Trade Tax, Uttar Pradesh, Lucknow, (2010) 6 SCC 705 , this Court held: 19. Now, coming to the second issue, it is trite that in view of the inherent complexity of fiscal adjustment of diverse elements, a wider discretion is given to the Revenue for the purpose of taxation and ordinarily different interpretations of a particular tariff entry by different authorities as such cannot be assailed as violative of Article 14 of the Constitution. Nonetheless, in our opinion, two different interpretations of a particular entry by the same authority on same set of facts, cannot be immunised from the equality clause under Article 14 of the Constitution. It would be a case of operating law unequally, attracting Article 14 of the Constitution. 45) To sum up, Article 14 does not prohibit reasonable classification of persons, objects and transactions by the Legislature for the purpose of attaining specific ends. To satisfy the test of permissible classification, it must not be ?arbitrary, artificial or evasive? but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the Legislature. The taxation laws are no exception to the application of this principle of equality enshrined in Article 14 of the Constitution of India. However, it is well settled that the Legislature enjoys very wide latitude in the matter of classification of objects, persons and things for the purpose of taxation in view of inherent complexity of fiscal adjustment of diverse elements. The power of the Legislature to classify is of wide range and flexibility so that it can adjust its system of taxation in all proper and reasonable ways. Even so, large latitude is allowed to the State for classification upon a reasonable basis and what is reasonable is a question of practical details and a variety of factors which the Court will be reluctant and perhaps ill- equipped to investigate. It has been laid down in a large number of decisions of this Court that a taxation Statute, for the reasons of functional expediency and even otherwise, can pick and choose to tax some. A power to classify being extremely broad and based on diverse considerations of executive pragmatism, the Judicature cannot rush in where even the Legislature warily treads. All these operational restraints on judicial power must weigh more emphatically where the subject is taxation. Discrimination resulting from fortuitous circumstances arising out of particular situations, in which some of the tax payers find themselves, is not hit by Article 14 if the legislation, as such, is of general application and does not single them out for harsh treatment. Advantages or disadvantages to individual assesses are accidental and inevitable and are inherent in every taxing Statute as it has to draw a line somewhere and some cases necessarily fall on the other side of the line. The point is illustrated by two decisions of this Court. In Khandige Sham Bhat vs. Agricultural Income Tax Officer, Kasaragod and Anr. (AIR 1963 SC 591 ). Travancore Cochin Agricultural Income Tax Act was extended to Malabar area on November 01, 1956 after formation of the State of Kerala. Prior to that date, there was no agricultural income tax in that area. The challenge under Article 14 was that the income of the petitioner was from areca nut and pepper crops, which were harvested after November in every year while persons who grew certain other crops could harvest before November and thus escape the liability to pay tax. It was held that, that was only accidental and did not amount to violation of Article14. In Jain Bros. vs. Union of India (supra), Section 297(2)(g) of Income Tax Act, 1961 was challenged because under that Section proceedings completed prior to April, 1962 was to be dealt under the old Act and proceedings completed after the said date had to be dealt with under the Income Tax Act, 1961 for the purpose of imposition of penalty. April 01, 1962 was the date of commencement of Income Tax Act, 1961. It was held that the crucial date for imposition of Penalty was the date of completion of assessment or the formation of satisfaction of authority that such act had been committed. It was also held that for the application and implementation of the new Act, it was necessary to fix a date and provide for continuation of pending proceedings. It was also held that the mere possibility that some officer might intentionally delay the disposal of a case could hardly be a ground for striking down the provision as discriminatory. 46) In view of the above discussion, | 1[ds]In determining whether classification is reasonable, regard must be had to the purpose for which legislation is designed. As we have seen, while understanding the Scheme of the legislation, the legislation is based on a reasonable basis which is firstly, the amount of duties, cesses, interest, fine or penalty must have been determined as on 31.03.1998 but not paid as on the date of declaration and secondly, the date of issuance of Demand or Show Cause Notice on or before 31.03.1998, which is not disputed but the duties remain unpaid on the date of filing of declaration. Therefore, in our view, the Scheme 1998 does not violate the equal protection clause where there is an essential difference and a real basis for the classification which is made. The mere fact that the line dividing the classes is placed at one point rather than another will not impair the validity of the14 does not prohibit reasonable classification of persons, objects and transactions by the Legislature for the purpose of attaining specific ends. To satisfy the test of permissible classification, it must not be ?arbitrary, artificial or evasive? but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the Legislature. The taxation laws are no exception to the application of this principle of equality enshrined in Article 14 of the Constitution of India. However, it is well settled that the Legislature enjoys very wide latitude in the matter of classification of objects, persons and things for the purpose of taxation in view of inherent complexity of fiscal adjustment of diverse elements. The power of the Legislature to classify is of wide range and flexibility so that it can adjust its system of taxation in all proper and reasonable ways. Even so, large latitude is allowed to the State for classification upon a reasonable basis and what is reasonable is a question of practical details and a variety of factors which the Court will be reluctant and perhaps ill- equipped to investigate. It has been laid down in a large number of decisions of this Court that a taxation Statute, for the reasons of functional expediency and even otherwise, can pick and choose to tax some. A power to classify being extremely broad and based on diverse considerations of executive pragmatism, the Judicature cannot rush in where even the Legislature warily treads. All these operational restraints on judicial power must weigh more emphatically where the subject is taxation. Discrimination resulting from fortuitous circumstances arising out of particular situations, in which some of the tax payers find themselves, is not hit by Article 14 if the legislation, as such, is of general application and does not single them out for harsh treatment. Advantages or disadvantages to individual assesses are accidental and inevitable and are inherent in every taxing Statute as it has to draw a line somewhere and some cases necessarily fall on the other side of the line. The point is illustrated by two decisions of this Court. In Khandige Sham Bhat vs. Agricultural Income Tax Officer, Kasaragod and Anr. (AIR 1963 SC 591 ). Travancore Cochin Agricultural Income Tax Act was extended to Malabar area on November 01, 1956 after formation of the State of Kerala. Prior to that date, there was no agricultural income tax in that area. The challenge under Article 14 was that the income of the petitioner was from areca nut and pepper crops, which were harvested after November in every year while persons who grew certain other crops could harvest before November and thus escape the liability to pay tax. It was held that, that was only accidental and did not amount to violation of Article14. In Jain Bros. vs. Union of India (supra), Section 297(2)(g) of Income Tax Act, 1961 was challenged because under that Section proceedings completed prior to April, 1962 was to be dealt under the old Act and proceedings completed after the said date had to be dealt with under the Income Tax Act, 1961 for the purpose of imposition of penalty. April 01, 1962 was the date of commencement of Income Tax Act, 1961. It was held that the crucial date for imposition of Penalty was the date of completion of assessment or the formation of satisfaction of authority that such act had been committed. It was also held that for the application and implementation of the new Act, it was necessary to fix a date and provide for continuation of pending proceedings. It was also held that the mere possibility that some officer might intentionally delay the disposal of a case could hardly be a ground for striking down the provision as discriminatory. | 1 | 13,644 | 865 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
to give incentives and lay down the rates of taxation, benefits or concessions. In the field of taxation if the test of Article 14 is satisfied by generality of provisions the courts would not substitute judicial wisdom for legislative wisdom. 43) In Aashirwad Films v. Union of India, (2007) 6 SCC 624 , this Court has held: 14. It has been accepted without dispute that taxation laws must also pass the test of Article 14 of the Constitution of India. It has been laid down in a large number of decisions of this Court that a taxation statute for the reasons of functional expediency and even otherwise, can pick and choose to tax some. Importantly, there is a rider operating on this wide power to tax and even discriminate in taxation that the classification thus chosen must be reasonable. The extent of reasonability of any taxation statute lies in its efficiency to achieve the object sought to be achieved by the statute. Thus, the classification must bear a nexus with the object sought to be achieved. (See Moopil Nair v. State of Kerala, East India Tobacco Co. v. State of A.P., N. Venugopala Ravi Varma Rajah v. Union of India, Asstt. Director of Inspection Investigation v. A.B. Shanthi and Associated Cement Companies Ltd. v. Govt. of A.P.) 44) In Jai Vijai Metal Udyog Private Limited, Industrial Estate, Varanasi v. Commissioner, Trade Tax, Uttar Pradesh, Lucknow, (2010) 6 SCC 705 , this Court held: 19. Now, coming to the second issue, it is trite that in view of the inherent complexity of fiscal adjustment of diverse elements, a wider discretion is given to the Revenue for the purpose of taxation and ordinarily different interpretations of a particular tariff entry by different authorities as such cannot be assailed as violative of Article 14 of the Constitution. Nonetheless, in our opinion, two different interpretations of a particular entry by the same authority on same set of facts, cannot be immunised from the equality clause under Article 14 of the Constitution. It would be a case of operating law unequally, attracting Article 14 of the Constitution. 45) To sum up, Article 14 does not prohibit reasonable classification of persons, objects and transactions by the Legislature for the purpose of attaining specific ends. To satisfy the test of permissible classification, it must not be ?arbitrary, artificial or evasive? but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the Legislature. The taxation laws are no exception to the application of this principle of equality enshrined in Article 14 of the Constitution of India. However, it is well settled that the Legislature enjoys very wide latitude in the matter of classification of objects, persons and things for the purpose of taxation in view of inherent complexity of fiscal adjustment of diverse elements. The power of the Legislature to classify is of wide range and flexibility so that it can adjust its system of taxation in all proper and reasonable ways. Even so, large latitude is allowed to the State for classification upon a reasonable basis and what is reasonable is a question of practical details and a variety of factors which the Court will be reluctant and perhaps ill- equipped to investigate. It has been laid down in a large number of decisions of this Court that a taxation Statute, for the reasons of functional expediency and even otherwise, can pick and choose to tax some. A power to classify being extremely broad and based on diverse considerations of executive pragmatism, the Judicature cannot rush in where even the Legislature warily treads. All these operational restraints on judicial power must weigh more emphatically where the subject is taxation. Discrimination resulting from fortuitous circumstances arising out of particular situations, in which some of the tax payers find themselves, is not hit by Article 14 if the legislation, as such, is of general application and does not single them out for harsh treatment. Advantages or disadvantages to individual assesses are accidental and inevitable and are inherent in every taxing Statute as it has to draw a line somewhere and some cases necessarily fall on the other side of the line. The point is illustrated by two decisions of this Court. In Khandige Sham Bhat vs. Agricultural Income Tax Officer, Kasaragod and Anr. (AIR 1963 SC 591 ). Travancore Cochin Agricultural Income Tax Act was extended to Malabar area on November 01, 1956 after formation of the State of Kerala. Prior to that date, there was no agricultural income tax in that area. The challenge under Article 14 was that the income of the petitioner was from areca nut and pepper crops, which were harvested after November in every year while persons who grew certain other crops could harvest before November and thus escape the liability to pay tax. It was held that, that was only accidental and did not amount to violation of Article14. In Jain Bros. vs. Union of India (supra), Section 297(2)(g) of Income Tax Act, 1961 was challenged because under that Section proceedings completed prior to April, 1962 was to be dealt under the old Act and proceedings completed after the said date had to be dealt with under the Income Tax Act, 1961 for the purpose of imposition of penalty. April 01, 1962 was the date of commencement of Income Tax Act, 1961. It was held that the crucial date for imposition of Penalty was the date of completion of assessment or the formation of satisfaction of authority that such act had been committed. It was also held that for the application and implementation of the new Act, it was necessary to fix a date and provide for continuation of pending proceedings. It was also held that the mere possibility that some officer might intentionally delay the disposal of a case could hardly be a ground for striking down the provision as discriminatory. 46) In view of the above discussion,
### Response:
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### Explanation:
In determining whether classification is reasonable, regard must be had to the purpose for which legislation is designed. As we have seen, while understanding the Scheme of the legislation, the legislation is based on a reasonable basis which is firstly, the amount of duties, cesses, interest, fine or penalty must have been determined as on 31.03.1998 but not paid as on the date of declaration and secondly, the date of issuance of Demand or Show Cause Notice on or before 31.03.1998, which is not disputed but the duties remain unpaid on the date of filing of declaration. Therefore, in our view, the Scheme 1998 does not violate the equal protection clause where there is an essential difference and a real basis for the classification which is made. The mere fact that the line dividing the classes is placed at one point rather than another will not impair the validity of the14 does not prohibit reasonable classification of persons, objects and transactions by the Legislature for the purpose of attaining specific ends. To satisfy the test of permissible classification, it must not be ?arbitrary, artificial or evasive? but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the Legislature. The taxation laws are no exception to the application of this principle of equality enshrined in Article 14 of the Constitution of India. However, it is well settled that the Legislature enjoys very wide latitude in the matter of classification of objects, persons and things for the purpose of taxation in view of inherent complexity of fiscal adjustment of diverse elements. The power of the Legislature to classify is of wide range and flexibility so that it can adjust its system of taxation in all proper and reasonable ways. Even so, large latitude is allowed to the State for classification upon a reasonable basis and what is reasonable is a question of practical details and a variety of factors which the Court will be reluctant and perhaps ill- equipped to investigate. It has been laid down in a large number of decisions of this Court that a taxation Statute, for the reasons of functional expediency and even otherwise, can pick and choose to tax some. A power to classify being extremely broad and based on diverse considerations of executive pragmatism, the Judicature cannot rush in where even the Legislature warily treads. All these operational restraints on judicial power must weigh more emphatically where the subject is taxation. Discrimination resulting from fortuitous circumstances arising out of particular situations, in which some of the tax payers find themselves, is not hit by Article 14 if the legislation, as such, is of general application and does not single them out for harsh treatment. Advantages or disadvantages to individual assesses are accidental and inevitable and are inherent in every taxing Statute as it has to draw a line somewhere and some cases necessarily fall on the other side of the line. The point is illustrated by two decisions of this Court. In Khandige Sham Bhat vs. Agricultural Income Tax Officer, Kasaragod and Anr. (AIR 1963 SC 591 ). Travancore Cochin Agricultural Income Tax Act was extended to Malabar area on November 01, 1956 after formation of the State of Kerala. Prior to that date, there was no agricultural income tax in that area. The challenge under Article 14 was that the income of the petitioner was from areca nut and pepper crops, which were harvested after November in every year while persons who grew certain other crops could harvest before November and thus escape the liability to pay tax. It was held that, that was only accidental and did not amount to violation of Article14. In Jain Bros. vs. Union of India (supra), Section 297(2)(g) of Income Tax Act, 1961 was challenged because under that Section proceedings completed prior to April, 1962 was to be dealt under the old Act and proceedings completed after the said date had to be dealt with under the Income Tax Act, 1961 for the purpose of imposition of penalty. April 01, 1962 was the date of commencement of Income Tax Act, 1961. It was held that the crucial date for imposition of Penalty was the date of completion of assessment or the formation of satisfaction of authority that such act had been committed. It was also held that for the application and implementation of the new Act, it was necessary to fix a date and provide for continuation of pending proceedings. It was also held that the mere possibility that some officer might intentionally delay the disposal of a case could hardly be a ground for striking down the provision as discriminatory.
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Meenal Eknath Kshirsagar Vs. Traders And Agencies | to her and by not referring to those facts she had come to the Court with unclean hands and that by itself was sufficient to disentitle her from getting a decree of eviction. If the appellant believed that the Olympus flat of which her husband was a tenant was not available for occupation as the same was vacated by her husband many years back and was occupied by Sridhar and his family and that it was not possible or convenient for her and her family to go and stay there, it was not absolutely necessary for her to refer to those facts in her plaint. It would have been better if she had referred to those facts but mere omission to state them in the plaint cannot be regarded as sufficient for disentitling her from claiming a decree for eviction, if otherwise she is able to prove that she requires reasonably the suit premises for her occupation. We are, therefore, of the opinion that the Appellate Bench and the High Court clearly went wrong in holding that the said omission was sufficient to disentitle her from getting a decree of eviction and it also disclosed that her claim was mala fide and not bona fide as required by law.20. The finding recorded by both the Courts that the "Park View flat was available to her and her husband for occupation is the result of not applying the correct test to the facts of the case. Eknath was undisputedly not a tenant of the said flat. The tenant of the said flat is M/s. A. F. Ferguson & Co. of which Eknath is only a Director. Mrs. Kalra is the owner of that flat and after it was taken on lease by the firm it was given to Mr. Kalra, another Director of the firm for his occupation and use. The firm allowed Eknath to use the said flat temporarily on leave and licence basis in October 1972, as Mr. Kalra was then temporarily transferred to Delhi. The evidence produced by the appellant did disclose that the firm had required Eknath to vacate the same and it was not right for the appellate Bench and the High Court to brush aside that evidence on the ground that it was "internal correspondence of the company." Eknath could not have occupied the said flat as a matter of right and in view of the arrangement between the firm and Mr. Kalra as disclosed by the evidence on record it cannot be said, in the context of judging the bona fide requirement of the appellant, that the said flat was available to her and her husband for occupation even after 1984. Even if it is believed that Eknath had not really vacated the said flat in 1984, and continued to be in possession, it cannot be said that the possession of the said flat was such as would disentitle the appellant to get a decree of eviction. Being a licensee Eknaths possession of that flat was precarious and, therefore, could not have been considered as suitable alternative accommodation.21. As regards the Olympus flat the evidence discloses, and it is not in dispute, that Eknath left that flat in October, 1972, and since then only Sridhar and his family members have been staying in that flat. It is a two bed room flat having an area of 1100 sq. ft. Sridhar has a wife and two children and the family of the appellant also consists of four persons. In the suit for eviction filed by the landlady of that flat a partial decree has been passed and Eknath has been ordered to hand over half the portion of that flat. Both Eknath and landlady have challenged the said partial decree and their respective appeals are pending before the Appellate Court. In this context the Courts had to consider whether it can be said that the appellant and Eknath are having suitable alternative accommodation and, therefore, the appellants claim that she requires the suit premises for her occupation is not reasonable and bona fide. The Appellate Bench and the High Court considered the possibility of Eknath going back to that flat and occupying it along with Sridhar and also the possibility that in case the landladys appeal is dismissed and Eknaths appeal is allowed the flat, in its entirely, will become available to Eknath and on that basis held that the appellants claim that she requires the suit premises reasonably and bona fide is not true. As pointed out by this Court it is for the landlord to decide how and in what manner he should live and that he is the best judge of residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by his as a tenant or on any other basis either insecure or inconvenient it is not for the Courts to dictate him to continue to occupy such premises. Though Eknath continues to be the tenant of the Olympus flat, as a matter of fact, it is being occupied exclusively by Sridhar and his family since October 1972. For this reason and also for the reason that because of the partial decree passed against him Eknath is now entitled to occupy the area of 550 sq. ft. only, it is difficult to appreciate how the Appellate Bench and the High Court could record a finding that the Olympus flat is readily available to the appellants husband and that the said accommodation will be quite sufficient and suitable for the appellant and her family.22. In view of the facts and circumstances of the case we are of the view that the appellant has proved her case of bona fide requirement and, therefore, the Small Cause Court was right in passing the decree in her favour. The Appellate Bench committed a grave error in reversing the same and the High Court also committed an error in confirming the judgment and order passed by the Appellate Bench. | 1[ds]The fact that the appellant is the owner of the suit premises and that she does not own any other premises in the City of Bombay is not in dispute. She does not possess, even as a tenant, any premises in Bombay. No doubt, she would be entitled to stay in the premises of which her husband is a tenant but if for any reason her husband had parted with possession of such premises and the same were occupied by her husbands brother, it cannot be said that the said premises were available to her and by not referring to those facts she had come to the Court with unclean hands and that by itself was sufficient to disentitle her from getting a decree of eviction. If the appellant believed that the Olympus flat of which her husband was a tenant was not available for occupation as the same was vacated by her husband many years back and was occupied by Sridhar and his family and that it was not possible or convenient for her and her family to go and stay there, it was not absolutely necessary for her to refer to those facts in her plaint. It would have been better if she had referred to those facts but mere omission to state them in the plaint cannot be regarded as sufficient for disentitling her from claiming a decree for eviction, if otherwise she is able to prove that she requires reasonably the suit premises for her occupation. We are, therefore, of the opinion that the Appellate Bench and the High Court clearly went wrong in holding that the said omission was sufficient to disentitle her from getting a decree of eviction and it also disclosed that her claim was mala fide and not bona fide as required by law.20. The finding recorded by both the Courts that the "Park View flat was available to her and her husband for occupation is the result of not applying the correct test to the facts of the case. Eknath was undisputedly not a tenant of the said flat. The tenant of the said flat is M/s. A. F. Ferguson & Co. of which Eknath is only a Director. Mrs. Kalra is the owner of that flat and after it was taken on lease by the firm it was given to Mr. Kalra, another Director of the firm for his occupation and use. The firm allowed Eknath to use the said flat temporarily on leave and licence basis in October 1972, as Mr. Kalra was then temporarily transferred to Delhi. The evidence produced by the appellant did disclose that the firm had required Eknath to vacate the same and it was not right for the appellate Bench and the High Court to brush aside that evidence on the ground that it was "internal correspondence of the company." Eknath could not have occupied the said flat as a matter of right and in view of the arrangement between the firm and Mr. Kalra as disclosed by the evidence on record it cannot be said, in the context of judging the bona fide requirement of the appellant, that the said flat was available to her and her husband for occupation even after 1984. Even if it is believed that Eknath had not really vacated the said flat in 1984, and continued to be in possession, it cannot be said that the possession of the said flat was such as would disentitle the appellant to get a decree of eviction. Being a licensee Eknaths possession of that flat was precarious and, therefore, could not have been considered as suitable alternative accommodation.21. As regards the Olympus flat the evidence discloses, and it is not in dispute, that Eknath left that flat in October, 1972, and since then only Sridhar and his family members have been staying in that flat. It is a two bed room flat having an area of 1100 sq. ft. Sridhar has a wife and two children and the family of the appellant also consists of four persons. In the suit for eviction filed by the landlady of that flat a partial decree has been passed and Eknath has been ordered to hand over half the portion of that flat. Both Eknath and landlady have challenged the said partial decree and their respective appeals are pending before the Appellate Court. In this context the Courts had to consider whether it can be said that the appellant and Eknath are having suitable alternative accommodation and, therefore, the appellants claim that she requires the suit premises for her occupation is not reasonable and bona fide. The Appellate Bench and the High Court considered the possibility of Eknath going back to that flat and occupying it along with Sridhar and also the possibility that in case the landladys appeal is dismissed and Eknaths appeal is allowed the flat, in its entirely, will become available to Eknath and on that basis held that the appellants claim that she requires the suit premises reasonably and bona fide is not true. As pointed out by this Court it is for the landlord to decide how and in what manner he should live and that he is the best judge of residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by his as a tenant or on any other basis either insecure or inconvenient it is not for the Courts to dictate him to continue to occupy such premises. Though Eknath continues to be the tenant of the Olympus flat, as a matter of fact, it is being occupied exclusively by Sridhar and his family since October 1972. For this reason and also for the reason that because of the partial decree passed against him Eknath is now entitled to occupy the area of 550 sq. ft. only, it is difficult to appreciate how the Appellate Bench and the High Court could record a finding that the Olympus flat is readily available to the appellants husband and that the said accommodation will be quite sufficient and suitable for the appellant and her family.22. In view of the facts and circumstances of the case we are of the view that the appellant has proved her case of bona fide requirement and, therefore, the Small Cause Court was right in passing the decree in her favour. The Appellate Bench committed a grave error in reversing the same and the High Court also committed an error in confirming the judgment and order passed by the Appellate Bench. | 1 | 4,281 | 1,163 | ### Instruction:
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to her and by not referring to those facts she had come to the Court with unclean hands and that by itself was sufficient to disentitle her from getting a decree of eviction. If the appellant believed that the Olympus flat of which her husband was a tenant was not available for occupation as the same was vacated by her husband many years back and was occupied by Sridhar and his family and that it was not possible or convenient for her and her family to go and stay there, it was not absolutely necessary for her to refer to those facts in her plaint. It would have been better if she had referred to those facts but mere omission to state them in the plaint cannot be regarded as sufficient for disentitling her from claiming a decree for eviction, if otherwise she is able to prove that she requires reasonably the suit premises for her occupation. We are, therefore, of the opinion that the Appellate Bench and the High Court clearly went wrong in holding that the said omission was sufficient to disentitle her from getting a decree of eviction and it also disclosed that her claim was mala fide and not bona fide as required by law.20. The finding recorded by both the Courts that the "Park View flat was available to her and her husband for occupation is the result of not applying the correct test to the facts of the case. Eknath was undisputedly not a tenant of the said flat. The tenant of the said flat is M/s. A. F. Ferguson & Co. of which Eknath is only a Director. Mrs. Kalra is the owner of that flat and after it was taken on lease by the firm it was given to Mr. Kalra, another Director of the firm for his occupation and use. The firm allowed Eknath to use the said flat temporarily on leave and licence basis in October 1972, as Mr. Kalra was then temporarily transferred to Delhi. The evidence produced by the appellant did disclose that the firm had required Eknath to vacate the same and it was not right for the appellate Bench and the High Court to brush aside that evidence on the ground that it was "internal correspondence of the company." Eknath could not have occupied the said flat as a matter of right and in view of the arrangement between the firm and Mr. Kalra as disclosed by the evidence on record it cannot be said, in the context of judging the bona fide requirement of the appellant, that the said flat was available to her and her husband for occupation even after 1984. Even if it is believed that Eknath had not really vacated the said flat in 1984, and continued to be in possession, it cannot be said that the possession of the said flat was such as would disentitle the appellant to get a decree of eviction. Being a licensee Eknaths possession of that flat was precarious and, therefore, could not have been considered as suitable alternative accommodation.21. As regards the Olympus flat the evidence discloses, and it is not in dispute, that Eknath left that flat in October, 1972, and since then only Sridhar and his family members have been staying in that flat. It is a two bed room flat having an area of 1100 sq. ft. Sridhar has a wife and two children and the family of the appellant also consists of four persons. In the suit for eviction filed by the landlady of that flat a partial decree has been passed and Eknath has been ordered to hand over half the portion of that flat. Both Eknath and landlady have challenged the said partial decree and their respective appeals are pending before the Appellate Court. In this context the Courts had to consider whether it can be said that the appellant and Eknath are having suitable alternative accommodation and, therefore, the appellants claim that she requires the suit premises for her occupation is not reasonable and bona fide. The Appellate Bench and the High Court considered the possibility of Eknath going back to that flat and occupying it along with Sridhar and also the possibility that in case the landladys appeal is dismissed and Eknaths appeal is allowed the flat, in its entirely, will become available to Eknath and on that basis held that the appellants claim that she requires the suit premises reasonably and bona fide is not true. As pointed out by this Court it is for the landlord to decide how and in what manner he should live and that he is the best judge of residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by his as a tenant or on any other basis either insecure or inconvenient it is not for the Courts to dictate him to continue to occupy such premises. Though Eknath continues to be the tenant of the Olympus flat, as a matter of fact, it is being occupied exclusively by Sridhar and his family since October 1972. For this reason and also for the reason that because of the partial decree passed against him Eknath is now entitled to occupy the area of 550 sq. ft. only, it is difficult to appreciate how the Appellate Bench and the High Court could record a finding that the Olympus flat is readily available to the appellants husband and that the said accommodation will be quite sufficient and suitable for the appellant and her family.22. In view of the facts and circumstances of the case we are of the view that the appellant has proved her case of bona fide requirement and, therefore, the Small Cause Court was right in passing the decree in her favour. The Appellate Bench committed a grave error in reversing the same and the High Court also committed an error in confirming the judgment and order passed by the Appellate Bench.
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### Explanation:
to her and by not referring to those facts she had come to the Court with unclean hands and that by itself was sufficient to disentitle her from getting a decree of eviction. If the appellant believed that the Olympus flat of which her husband was a tenant was not available for occupation as the same was vacated by her husband many years back and was occupied by Sridhar and his family and that it was not possible or convenient for her and her family to go and stay there, it was not absolutely necessary for her to refer to those facts in her plaint. It would have been better if she had referred to those facts but mere omission to state them in the plaint cannot be regarded as sufficient for disentitling her from claiming a decree for eviction, if otherwise she is able to prove that she requires reasonably the suit premises for her occupation. We are, therefore, of the opinion that the Appellate Bench and the High Court clearly went wrong in holding that the said omission was sufficient to disentitle her from getting a decree of eviction and it also disclosed that her claim was mala fide and not bona fide as required by law.20. The finding recorded by both the Courts that the "Park View flat was available to her and her husband for occupation is the result of not applying the correct test to the facts of the case. Eknath was undisputedly not a tenant of the said flat. The tenant of the said flat is M/s. A. F. Ferguson & Co. of which Eknath is only a Director. Mrs. Kalra is the owner of that flat and after it was taken on lease by the firm it was given to Mr. Kalra, another Director of the firm for his occupation and use. The firm allowed Eknath to use the said flat temporarily on leave and licence basis in October 1972, as Mr. Kalra was then temporarily transferred to Delhi. The evidence produced by the appellant did disclose that the firm had required Eknath to vacate the same and it was not right for the appellate Bench and the High Court to brush aside that evidence on the ground that it was "internal correspondence of the company." Eknath could not have occupied the said flat as a matter of right and in view of the arrangement between the firm and Mr. Kalra as disclosed by the evidence on record it cannot be said, in the context of judging the bona fide requirement of the appellant, that the said flat was available to her and her husband for occupation even after 1984. Even if it is believed that Eknath had not really vacated the said flat in 1984, and continued to be in possession, it cannot be said that the possession of the said flat was such as would disentitle the appellant to get a decree of eviction. Being a licensee Eknaths possession of that flat was precarious and, therefore, could not have been considered as suitable alternative accommodation.21. As regards the Olympus flat the evidence discloses, and it is not in dispute, that Eknath left that flat in October, 1972, and since then only Sridhar and his family members have been staying in that flat. It is a two bed room flat having an area of 1100 sq. ft. Sridhar has a wife and two children and the family of the appellant also consists of four persons. In the suit for eviction filed by the landlady of that flat a partial decree has been passed and Eknath has been ordered to hand over half the portion of that flat. Both Eknath and landlady have challenged the said partial decree and their respective appeals are pending before the Appellate Court. In this context the Courts had to consider whether it can be said that the appellant and Eknath are having suitable alternative accommodation and, therefore, the appellants claim that she requires the suit premises for her occupation is not reasonable and bona fide. The Appellate Bench and the High Court considered the possibility of Eknath going back to that flat and occupying it along with Sridhar and also the possibility that in case the landladys appeal is dismissed and Eknaths appeal is allowed the flat, in its entirely, will become available to Eknath and on that basis held that the appellants claim that she requires the suit premises reasonably and bona fide is not true. As pointed out by this Court it is for the landlord to decide how and in what manner he should live and that he is the best judge of residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by his as a tenant or on any other basis either insecure or inconvenient it is not for the Courts to dictate him to continue to occupy such premises. Though Eknath continues to be the tenant of the Olympus flat, as a matter of fact, it is being occupied exclusively by Sridhar and his family since October 1972. For this reason and also for the reason that because of the partial decree passed against him Eknath is now entitled to occupy the area of 550 sq. ft. only, it is difficult to appreciate how the Appellate Bench and the High Court could record a finding that the Olympus flat is readily available to the appellants husband and that the said accommodation will be quite sufficient and suitable for the appellant and her family.22. In view of the facts and circumstances of the case we are of the view that the appellant has proved her case of bona fide requirement and, therefore, the Small Cause Court was right in passing the decree in her favour. The Appellate Bench committed a grave error in reversing the same and the High Court also committed an error in confirming the judgment and order passed by the Appellate Bench.
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Mysore State Road Transport Corporation Vs. Gopinath Gundachar Char | any extended area (b) to provide for any ancillary service; (c) to provide for its employees suitable conditions of service including fair wages, establishment of provident fund, living accommodation, places for rest and recreation and other amenities. 34 (1) The State Government may, after consultation with a Corporation established by such Government, give to the Corporation general instructions to be followed by the Corporation, and such instructions may include directions relating to the recruitment, conditions of service and training of its employees, wages to be paid to the employees, reserves to be maintained by it and disposal of its profits or stocks. 2. In the exercise of its powers and performance of its duties under this Act, the Corporation shall not depart from any general instructions issued under sub-section (1) except with the previous permission of the State Government. 45 (1) A Corporation may, with the previous sanction of the State Government, make regulations, not inconsistent with this Act and the rules made "thereunder, for the administration of the affairs of the Corporation. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:- * * * * * * (c) the conditions of appointment and service and the scales of pay of officers and servants of the Corporation other than the Chief Executive Officer or General Manager and the Chief Accounts Officer," 2. Admittedly, no regulations were framed by the Corporation under S. 45 (2) (c) prescribing the conditions of appointment and service add the scales of pay of its officers and servants. In the affidavit filed on behalf of the Corporation, it was stated that the Corporation was taking necessary steps for the framing of the regulations. The High Court following its earlier decision in Karnakar Mangesh Desai v. State of Mysore, (1966) 1 Mys LJ 72: (AIR 1966 Mys. 317), held that until regulations were framed by the Corporation under Section 45 (2) (c) with the previous sanction of the State Government, the Corporation could not appoint officers and servants and lay down their conditions of service. We think that the judgment of the High Court is erroneous and should be set aside. 3. In Dundee Harbour Trustees v. D. and J. Nicol 1915 AC 550 at P. 556 Viscount Haldane L. C. said:"The answer to the question whether a corporation created by a statute has a particular power depends exclusively on whether that power has been expressly given to it by the statute regulating it, or can be implied from the language used. The question is simply one of construction of language and not of presumption." 4. Bearing in mind this statement of law, let us consider whether the appellant had the power to appoint officers and servants and to lay down their conditions of service in the absence of regulations framed under S. 45 (2) of the Road Transport Corporations Act, 1950. The appellant is an autonomous Corporation incorporated under the Act for the purpose of operating road transport services in the State and extended areas. For the proper discharge of its functions, it is necessary for the Corporation to appoint officers and servants. Section 14 (2) expressly confers upon the Corporation the incidental power to appoint such officers and servants as it considers necessary for the efficient performance of its functions. Section 19 (1) (c) empowers it to provide for its employees suitable conditions of service. Section 14 (3) provides that the conditions of appointment and service and the scales of pay of its officers and servants shall be such as may subject to the provisions of S. 34, he determined by regulations made under the Act. Section 45 (2) (c) empowers the Corporation to frame regulations with the previous sanction of the State Government prescribing the conditions of appointment, service and scales of pay of the officers and servants. If the State Government issues any directions under S. 34 relating to the recruitment and conditions of service of the employees, the Corporation must obey those directions. 5. The conjoint effect of Ss. 14 (3) (b), 34 and 45 (2) (c) is that the appointment of officers and servants and their conditions of service must conform to the directions, if any, given by the State Government under S. 34 and the regulations, if any, framed under S. 45 (2) (c). But until such regulations are framed or directions are given, the Corporation may appoint such officers or servants as may be necessary for the efficient performance of its duties on such terms and condition as it thinks fit. There is necessarily a timelag between the formation of the Corporation and the framing of regulations under S. 45 (2) (c). During the intervening period, the Corporation must carry on the administration of its affair with the help of officers and servants. In the absence of clear words, it is difficult to impute to the legislature the intention that the Corporation would have no power to appoint officer and servants and fix the conditions of service unless the regulations under S. 45 (a) (c) are framed. 6. There is no merit in the further contention that the General Manager had no power to issue the notice dated July 21, 1964 in the absence of any resolution by the Corporation under S. 12 (c) expressly authorising him to issue it. In the exercise of his general powers of management the General Manager had clearly the power to issue a notice inviting applications from intending candidates. It is not alleged that he made any appointment pursuant to the notice. The respondent also contended that he had the right to be promoted to a class II junior post. But there is nothing on the record to show that he has any vested right of promotion to the post. Civil Miscellaneous Petition No. 3032 of 1967 filed by the respondent asking for liberty to adduce additional evidence and to raise new contentions is dismissed. 7. | 1[ds]The appellant is an autonomous Corporation incorporated under the Act for the purpose of operating road transport services in the State and extended areas. For the proper discharge of its functions, it is necessary for the Corporation to appoint officers and servants. Section 14 (2) expressly confers upon the Corporation the incidental power to appoint such officers and servants as it considers necessary for the efficient performance of its functions. Section 19 (1) (c) empowers it to provide for its employees suitable conditions of service. Section 14 (3) provides that the conditions of appointment and service and the scales of pay of its officers and servants shall be such as may subject to the provisions of S. 34, he determined by regulations made under the Act. Section 45 (2) (c) empowers the Corporation to frame regulations with the previous sanction of the State Government prescribing the conditions of appointment, service and scales of pay of the officers and servants. If the State Government issues any directions under S. 34 relating to the recruitment and conditions of service of the employees, the Corporation must obey thosee conjoint effect of Ss. 14 (3) (b), 34 and 45 (2) (c) is that the appointment of officers and servants and their conditions of service must conform to the directions, if any, given by the State Government under S. 34 and the regulations, if any, framed under S. 45 (2) (c). But until such regulations are framed or directions are given, the Corporation may appoint such officers or servants as may be necessary for the efficient performance of its duties on such terms and condition as it thinks fit. There is necessarily a timelag between the formation of the Corporation and the framing of regulations under S. 45 (2) (c). During the intervening period, the Corporation must carry on the administration of its affair with the help of officers and servants. In the absence of clear words, it is difficult to impute to the legislature the intention that the Corporation would have no power to appoint officer and servants and fix the conditions of service unless the regulations under S. 45 (a) (c) are framedThere is no merit in the further contention that the General Manager had no power to issue the notice dated July 21, 1964 in the absence of any resolution by the Corporation under S. 12 (c) expressly authorising him to issue it. In the exercise of his general powers of management the General Manager had clearly the power to issue a notice inviting applications from intending candidates. It is not alleged that he made any appointment pursuant to the notice. The respondent also contended that he had the right to be promoted to a class II junior post. But there is nothing on the record to show that he has any vested right of promotion to the post. Civil Miscellaneous Petition No. 3032 of 1967 filed by the respondent asking for liberty to adduce additional evidence and to raise new contentions is dismissed. | 1 | 1,547 | 571 | ### Instruction:
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any extended area (b) to provide for any ancillary service; (c) to provide for its employees suitable conditions of service including fair wages, establishment of provident fund, living accommodation, places for rest and recreation and other amenities. 34 (1) The State Government may, after consultation with a Corporation established by such Government, give to the Corporation general instructions to be followed by the Corporation, and such instructions may include directions relating to the recruitment, conditions of service and training of its employees, wages to be paid to the employees, reserves to be maintained by it and disposal of its profits or stocks. 2. In the exercise of its powers and performance of its duties under this Act, the Corporation shall not depart from any general instructions issued under sub-section (1) except with the previous permission of the State Government. 45 (1) A Corporation may, with the previous sanction of the State Government, make regulations, not inconsistent with this Act and the rules made "thereunder, for the administration of the affairs of the Corporation. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:- * * * * * * (c) the conditions of appointment and service and the scales of pay of officers and servants of the Corporation other than the Chief Executive Officer or General Manager and the Chief Accounts Officer," 2. Admittedly, no regulations were framed by the Corporation under S. 45 (2) (c) prescribing the conditions of appointment and service add the scales of pay of its officers and servants. In the affidavit filed on behalf of the Corporation, it was stated that the Corporation was taking necessary steps for the framing of the regulations. The High Court following its earlier decision in Karnakar Mangesh Desai v. State of Mysore, (1966) 1 Mys LJ 72: (AIR 1966 Mys. 317), held that until regulations were framed by the Corporation under Section 45 (2) (c) with the previous sanction of the State Government, the Corporation could not appoint officers and servants and lay down their conditions of service. We think that the judgment of the High Court is erroneous and should be set aside. 3. In Dundee Harbour Trustees v. D. and J. Nicol 1915 AC 550 at P. 556 Viscount Haldane L. C. said:"The answer to the question whether a corporation created by a statute has a particular power depends exclusively on whether that power has been expressly given to it by the statute regulating it, or can be implied from the language used. The question is simply one of construction of language and not of presumption." 4. Bearing in mind this statement of law, let us consider whether the appellant had the power to appoint officers and servants and to lay down their conditions of service in the absence of regulations framed under S. 45 (2) of the Road Transport Corporations Act, 1950. The appellant is an autonomous Corporation incorporated under the Act for the purpose of operating road transport services in the State and extended areas. For the proper discharge of its functions, it is necessary for the Corporation to appoint officers and servants. Section 14 (2) expressly confers upon the Corporation the incidental power to appoint such officers and servants as it considers necessary for the efficient performance of its functions. Section 19 (1) (c) empowers it to provide for its employees suitable conditions of service. Section 14 (3) provides that the conditions of appointment and service and the scales of pay of its officers and servants shall be such as may subject to the provisions of S. 34, he determined by regulations made under the Act. Section 45 (2) (c) empowers the Corporation to frame regulations with the previous sanction of the State Government prescribing the conditions of appointment, service and scales of pay of the officers and servants. If the State Government issues any directions under S. 34 relating to the recruitment and conditions of service of the employees, the Corporation must obey those directions. 5. The conjoint effect of Ss. 14 (3) (b), 34 and 45 (2) (c) is that the appointment of officers and servants and their conditions of service must conform to the directions, if any, given by the State Government under S. 34 and the regulations, if any, framed under S. 45 (2) (c). But until such regulations are framed or directions are given, the Corporation may appoint such officers or servants as may be necessary for the efficient performance of its duties on such terms and condition as it thinks fit. There is necessarily a timelag between the formation of the Corporation and the framing of regulations under S. 45 (2) (c). During the intervening period, the Corporation must carry on the administration of its affair with the help of officers and servants. In the absence of clear words, it is difficult to impute to the legislature the intention that the Corporation would have no power to appoint officer and servants and fix the conditions of service unless the regulations under S. 45 (a) (c) are framed. 6. There is no merit in the further contention that the General Manager had no power to issue the notice dated July 21, 1964 in the absence of any resolution by the Corporation under S. 12 (c) expressly authorising him to issue it. In the exercise of his general powers of management the General Manager had clearly the power to issue a notice inviting applications from intending candidates. It is not alleged that he made any appointment pursuant to the notice. The respondent also contended that he had the right to be promoted to a class II junior post. But there is nothing on the record to show that he has any vested right of promotion to the post. Civil Miscellaneous Petition No. 3032 of 1967 filed by the respondent asking for liberty to adduce additional evidence and to raise new contentions is dismissed. 7.
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### Explanation:
The appellant is an autonomous Corporation incorporated under the Act for the purpose of operating road transport services in the State and extended areas. For the proper discharge of its functions, it is necessary for the Corporation to appoint officers and servants. Section 14 (2) expressly confers upon the Corporation the incidental power to appoint such officers and servants as it considers necessary for the efficient performance of its functions. Section 19 (1) (c) empowers it to provide for its employees suitable conditions of service. Section 14 (3) provides that the conditions of appointment and service and the scales of pay of its officers and servants shall be such as may subject to the provisions of S. 34, he determined by regulations made under the Act. Section 45 (2) (c) empowers the Corporation to frame regulations with the previous sanction of the State Government prescribing the conditions of appointment, service and scales of pay of the officers and servants. If the State Government issues any directions under S. 34 relating to the recruitment and conditions of service of the employees, the Corporation must obey thosee conjoint effect of Ss. 14 (3) (b), 34 and 45 (2) (c) is that the appointment of officers and servants and their conditions of service must conform to the directions, if any, given by the State Government under S. 34 and the regulations, if any, framed under S. 45 (2) (c). But until such regulations are framed or directions are given, the Corporation may appoint such officers or servants as may be necessary for the efficient performance of its duties on such terms and condition as it thinks fit. There is necessarily a timelag between the formation of the Corporation and the framing of regulations under S. 45 (2) (c). During the intervening period, the Corporation must carry on the administration of its affair with the help of officers and servants. In the absence of clear words, it is difficult to impute to the legislature the intention that the Corporation would have no power to appoint officer and servants and fix the conditions of service unless the regulations under S. 45 (a) (c) are framedThere is no merit in the further contention that the General Manager had no power to issue the notice dated July 21, 1964 in the absence of any resolution by the Corporation under S. 12 (c) expressly authorising him to issue it. In the exercise of his general powers of management the General Manager had clearly the power to issue a notice inviting applications from intending candidates. It is not alleged that he made any appointment pursuant to the notice. The respondent also contended that he had the right to be promoted to a class II junior post. But there is nothing on the record to show that he has any vested right of promotion to the post. Civil Miscellaneous Petition No. 3032 of 1967 filed by the respondent asking for liberty to adduce additional evidence and to raise new contentions is dismissed.
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PANDIT MALHARI MAHALE Vs. MONIKA PANDIT MAHALE & ORS | 1. Leave granted. 2. We have heard learned counsel for the appellant. Despite service, no one is present on behalf of the respondents. 3. This appeal has been filed against the judgment and order dated 14.08.2018 passed by the High Court in W.P. (C) No. 11263/2016, by which the High Court dismissed the writ petition. 4. A suit for partition was filed by the respondents i.e. wife and children of the appellant. In the suit, evidence started and thereafter an application for amendment of plaint was filed by plaintiff No.3. The amendment was objected by the defendant (appellant herein). However, the learned Civil Judge by order dated 09.03.2016 allowed the application against which the writ petition was filed which was dismissed. 5. Learned counsel for the appellant submits that evidence had already begun and in view of Order VI Rule 16 of the Code of Civil Procedure, 1908 the amendment could not have been considered unless the Court return a finding that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. 6. We have considered the submissions of learned counsel for the appellant and perused the record. 7. From the evidence on record, it does appear that evidence had begun and thereafter amendment application was filed. Without their being any finding by the Court as contemplated by Order VI Rule 16 proviso, the Court ought not to have allowed the amendment. 8. In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In Vidyabai & Ors. v. Padmalatha & Anr. [(2009) 2 SCC 409 ], this Court observed in para 19 as under: 19. It is primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The courts jurisdiction in a case of this nature is limited. Thus unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint. 9. There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the Trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter. | 1[ds]6. We have considered the submissions of learned counsel for the appellant and perused the record.7. From the evidence on record, it does appear that evidence had begun and thereafter amendment application was filed. Without their being any finding by the Court as contemplated by Order VI Rule 16 proviso, the Court ought not to have allowed the amendment.8. In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In Vidyabai & Ors. v. Padmalatha & Anr. [(2009) 2 SCC 409 ], this Court observed in para 19 as under:19. It is primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The courts jurisdiction in a case of this nature is limited. Thus unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.9. There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the Trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter. | 1 | 515 | 303 | ### 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:
1. Leave granted. 2. We have heard learned counsel for the appellant. Despite service, no one is present on behalf of the respondents. 3. This appeal has been filed against the judgment and order dated 14.08.2018 passed by the High Court in W.P. (C) No. 11263/2016, by which the High Court dismissed the writ petition. 4. A suit for partition was filed by the respondents i.e. wife and children of the appellant. In the suit, evidence started and thereafter an application for amendment of plaint was filed by plaintiff No.3. The amendment was objected by the defendant (appellant herein). However, the learned Civil Judge by order dated 09.03.2016 allowed the application against which the writ petition was filed which was dismissed. 5. Learned counsel for the appellant submits that evidence had already begun and in view of Order VI Rule 16 of the Code of Civil Procedure, 1908 the amendment could not have been considered unless the Court return a finding that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. 6. We have considered the submissions of learned counsel for the appellant and perused the record. 7. From the evidence on record, it does appear that evidence had begun and thereafter amendment application was filed. Without their being any finding by the Court as contemplated by Order VI Rule 16 proviso, the Court ought not to have allowed the amendment. 8. In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In Vidyabai & Ors. v. Padmalatha & Anr. [(2009) 2 SCC 409 ], this Court observed in para 19 as under: 19. It is primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The courts jurisdiction in a case of this nature is limited. Thus unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint. 9. There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the Trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter.
### Response:
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### Explanation:
6. We have considered the submissions of learned counsel for the appellant and perused the record.7. From the evidence on record, it does appear that evidence had begun and thereafter amendment application was filed. Without their being any finding by the Court as contemplated by Order VI Rule 16 proviso, the Court ought not to have allowed the amendment.8. In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In Vidyabai & Ors. v. Padmalatha & Anr. [(2009) 2 SCC 409 ], this Court observed in para 19 as under:19. It is primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The courts jurisdiction in a case of this nature is limited. Thus unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.9. There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the Trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter.
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Hindustan Construction Company Ltd Vs. Union Of India | copy thereof, and, therefore, it cannot be acted upon. The High Court has accepted the contention of the respondent and all that it has said in that behalf is that it is clear from a perusal of the award that it is not a signed copy of the award but it is certified as correct copy of the award, dated the 27th May 1961. Unfortunately, the High Court has not considered what exactly the words "signed copy of the award" mean, and it is to this problem that we must now turn.5. Now the word "copy" as such is not defined in the Indian [Evidence Act, 1 of 1872. But we get an idea of what a copy is from the provisions of S. 63 of the Evidence Act. That Section inter alia defines what secondary evidence means and includes, namely-(i) certified copies as provided in S. 76 of Evidence Act, (ii) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies, and (iii) copies made from or compared with the original. Obviously, therefore, a copy means a document prepared from the original which is an accurate or true copy of the original. In Websters New World Dictionary, the word "copy" means "a thing made just like another, full reproduction or transcription". What the word "copy" in S. 14 (2), therefore, requires is that it must be a full reproduction of the original and that it should be accurate or true. When a document is an accurate or true and full reproduction of the original it would be a copy. In the present case it is not in dispute that what was produced by Sri Dildar Hussain was a true or accurate and full reproduction of the original. It was, therefore, a copy of the original, and the only question that remains is whether it was signed. for if it was signed, it would be a signed copy.6. This brings us to the meaning of the word ".sign" as used in the expression "signed copy". In Websters New World Dictionary the word "sign" means "to write ones name on, as in acknowledging authorship, authorising action, etc." To write ones name is signature. Section 3 (56) of the General Clauses Act No. 10 of 1897, has not defined the word "sign" but has extended its meaning with reference to a person who is unable to write his name to include "mark" with its grammatical variations and cognate expressions. This provision indicates that signing means writing ones name on some document or paper.In Mohesh Lal v. Busunt Kumaree, (1881) ILR 6 Cal 340, a question arose as to what "signatures" meant in connection with S. 20 of the Limitation Act, No. IX of 1871. It was observed that "where a party to a contract signs his name in any part of it in such a way as to acknowledge that he is the party contracting, that is a sufficient signature". It was further observed that the document must be signed in such a way as to make it appear that the person signing it is the author of it, and if that appears it does not matter what the form of the instrument is, or in what part of it the signature occurs.7. We accept these observations and are of the opinion that so long as there is the signature of the arbitrator or umpire on the copy of the award filed in Court and it shows that the person signing authenticated the accuracy or correctness of the copy the document would be a signed copy of the award. It would in such circumstances be immaterial whether the arbitrator or umpire put down the words "certified to be true copy" before signing the copy of the award. If anything, the addition of these words (namely, certified to be true copy) would be the clearest indication of the authentication of the copy as a true copy of the award, which is what S. 14 (2) requires, so long as the authentication is under the signature of the arbitrator or the umpire himself. In the present case, the document was sent by the umpire along with a letter forwarding it to the Court. In the letter it was stated that he was sending the award duly signed and certified by him. Then turning to the document we find that it begins with the words "now I hereby reproduce a true copy of the said award which is as follows" and this is signed by Sri Dildar Hussain, the umpire. Then follows the copy of the award. At the end we find the words "certified as correct copy of the award, dated the 27th May 1961." Underneath appears the signature of Sri Dildar Hussain, the umpire Clearly, therefore, the document filed is a true or accurate and full reproduction of the original award and it bears the signature of the umpire, Sri Dildar Hussain, and thus is signed copy of the award. The fact that the umpire wrote the words "certified as correct copy of the award, dated the 27th May 1961" above his signature does not in our opinion make any difference, and the document is still a signed copy of the award. If anything, these words show that the document filed is a true copy of the award and as it bears the signature of the umpire, it is a signed copy thereof. It may be added that the words "now I hereby reproduce a true copy of the said award which is as fol1ows" which appear at the beginning of the document and which are signed by the umpire Sri Dildar Hussain also in our opinion are sufficient to show that what was produced in Court was a signed copy of the award as required by S. 14 (2).8. In this view of the matter, it is unnecessary to consider the alternative argument raised on behalf of the appellant. | 1[ds]is not in dispute that in the present case the original award has not beenHigh Court has accepted the contention of the respondent and all that it has said in that behalf is that it is clear from a perusal of the award that it is not a signed copy of the award but it is certified as correct copy of the award, dated the 27th May 1961. Unfortunately, the High Court has not considered what exactly the words "signed copy of the award" mean, and it is to this problem that we must nowa document is an accurate or true and full reproduction of the original it would be a copy. In the present case it is not in dispute that what was produced by Sri Dildar Hussain was a true or accurate and full reproduction of the original. It was, therefore, a copy of the original, and the only question that remains is whether it was signed. for if it was signed, it would be a signedwas further observed that the document must be signed in such a way as to make it appear that the person signing it is the author of it, and if that appears it does not matter what the form of the instrument is, or in what part of it the signature occurs.7. We accept these observations and are of the opinion that so long as there is the signature of the arbitrator or umpire on the copy of the award filed in Court and it shows that the person signing authenticated the accuracy or correctness of the copy the document would be a signed copy of the award. It would in such circumstances be immaterial whether the arbitrator or umpire put down the words "certified to be true copy" before signing the copy of the award. If anything, the addition of these words (namely, certified to be true copy) would be the clearest indication of the authentication of the copy as a true copy of the award, which is what S. 14 (2) requires, so long as the authentication is under the signature of the arbitrator or the umpire himself. In the present case, the document was sent by the umpire along with a letter forwarding it to the Court. In the letter it was stated that he was sending the award duly signed and certified by him. Then turning to the document we find that it begins with the words "now I hereby reproduce a true copy of the said award which is as follows" and this is signed by Sri Dildar Hussain, the umpire. Then follows the copy of the award. At the end we find the words "certified as correct copy of the award, dated the 27th May 1961." Underneath appears the signature of Sri Dildar Hussain, the umpire Clearly, therefore, the document filed is a true or accurate and full reproduction of the original award and it bears the signature of the umpire, Sri Dildar Hussain, and thus is signed copy of the award. The fact that the umpire wrote the words "certified as correct copy of the award, dated the 27th May 1961" above his signature does not in our opinion make any difference, and the document is still a signed copy of the award. If anything, these words show that the document filed is a true copy of the award and as it bears the signature of the umpire, it is a signed copy thereof. It may be added that the words "now I hereby reproduce a true copy of the said award which is as fol1ows" which appear at the beginning of the document and which are signed by the umpire Sri Dildar Hussain also in our opinion are sufficient to show that what was produced in Court was a signed copy of the award as required by S. 14 (2).8. In this view of the matter, it is unnecessary to consider the alternative argument raised on behalf of the appellant. | 1 | 1,947 | 733 | ### 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:
copy thereof, and, therefore, it cannot be acted upon. The High Court has accepted the contention of the respondent and all that it has said in that behalf is that it is clear from a perusal of the award that it is not a signed copy of the award but it is certified as correct copy of the award, dated the 27th May 1961. Unfortunately, the High Court has not considered what exactly the words "signed copy of the award" mean, and it is to this problem that we must now turn.5. Now the word "copy" as such is not defined in the Indian [Evidence Act, 1 of 1872. But we get an idea of what a copy is from the provisions of S. 63 of the Evidence Act. That Section inter alia defines what secondary evidence means and includes, namely-(i) certified copies as provided in S. 76 of Evidence Act, (ii) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies, and (iii) copies made from or compared with the original. Obviously, therefore, a copy means a document prepared from the original which is an accurate or true copy of the original. In Websters New World Dictionary, the word "copy" means "a thing made just like another, full reproduction or transcription". What the word "copy" in S. 14 (2), therefore, requires is that it must be a full reproduction of the original and that it should be accurate or true. When a document is an accurate or true and full reproduction of the original it would be a copy. In the present case it is not in dispute that what was produced by Sri Dildar Hussain was a true or accurate and full reproduction of the original. It was, therefore, a copy of the original, and the only question that remains is whether it was signed. for if it was signed, it would be a signed copy.6. This brings us to the meaning of the word ".sign" as used in the expression "signed copy". In Websters New World Dictionary the word "sign" means "to write ones name on, as in acknowledging authorship, authorising action, etc." To write ones name is signature. Section 3 (56) of the General Clauses Act No. 10 of 1897, has not defined the word "sign" but has extended its meaning with reference to a person who is unable to write his name to include "mark" with its grammatical variations and cognate expressions. This provision indicates that signing means writing ones name on some document or paper.In Mohesh Lal v. Busunt Kumaree, (1881) ILR 6 Cal 340, a question arose as to what "signatures" meant in connection with S. 20 of the Limitation Act, No. IX of 1871. It was observed that "where a party to a contract signs his name in any part of it in such a way as to acknowledge that he is the party contracting, that is a sufficient signature". It was further observed that the document must be signed in such a way as to make it appear that the person signing it is the author of it, and if that appears it does not matter what the form of the instrument is, or in what part of it the signature occurs.7. We accept these observations and are of the opinion that so long as there is the signature of the arbitrator or umpire on the copy of the award filed in Court and it shows that the person signing authenticated the accuracy or correctness of the copy the document would be a signed copy of the award. It would in such circumstances be immaterial whether the arbitrator or umpire put down the words "certified to be true copy" before signing the copy of the award. If anything, the addition of these words (namely, certified to be true copy) would be the clearest indication of the authentication of the copy as a true copy of the award, which is what S. 14 (2) requires, so long as the authentication is under the signature of the arbitrator or the umpire himself. In the present case, the document was sent by the umpire along with a letter forwarding it to the Court. In the letter it was stated that he was sending the award duly signed and certified by him. Then turning to the document we find that it begins with the words "now I hereby reproduce a true copy of the said award which is as follows" and this is signed by Sri Dildar Hussain, the umpire. Then follows the copy of the award. At the end we find the words "certified as correct copy of the award, dated the 27th May 1961." Underneath appears the signature of Sri Dildar Hussain, the umpire Clearly, therefore, the document filed is a true or accurate and full reproduction of the original award and it bears the signature of the umpire, Sri Dildar Hussain, and thus is signed copy of the award. The fact that the umpire wrote the words "certified as correct copy of the award, dated the 27th May 1961" above his signature does not in our opinion make any difference, and the document is still a signed copy of the award. If anything, these words show that the document filed is a true copy of the award and as it bears the signature of the umpire, it is a signed copy thereof. It may be added that the words "now I hereby reproduce a true copy of the said award which is as fol1ows" which appear at the beginning of the document and which are signed by the umpire Sri Dildar Hussain also in our opinion are sufficient to show that what was produced in Court was a signed copy of the award as required by S. 14 (2).8. In this view of the matter, it is unnecessary to consider the alternative argument raised on behalf of the appellant.
### Response:
1
### Explanation:
is not in dispute that in the present case the original award has not beenHigh Court has accepted the contention of the respondent and all that it has said in that behalf is that it is clear from a perusal of the award that it is not a signed copy of the award but it is certified as correct copy of the award, dated the 27th May 1961. Unfortunately, the High Court has not considered what exactly the words "signed copy of the award" mean, and it is to this problem that we must nowa document is an accurate or true and full reproduction of the original it would be a copy. In the present case it is not in dispute that what was produced by Sri Dildar Hussain was a true or accurate and full reproduction of the original. It was, therefore, a copy of the original, and the only question that remains is whether it was signed. for if it was signed, it would be a signedwas further observed that the document must be signed in such a way as to make it appear that the person signing it is the author of it, and if that appears it does not matter what the form of the instrument is, or in what part of it the signature occurs.7. We accept these observations and are of the opinion that so long as there is the signature of the arbitrator or umpire on the copy of the award filed in Court and it shows that the person signing authenticated the accuracy or correctness of the copy the document would be a signed copy of the award. It would in such circumstances be immaterial whether the arbitrator or umpire put down the words "certified to be true copy" before signing the copy of the award. If anything, the addition of these words (namely, certified to be true copy) would be the clearest indication of the authentication of the copy as a true copy of the award, which is what S. 14 (2) requires, so long as the authentication is under the signature of the arbitrator or the umpire himself. In the present case, the document was sent by the umpire along with a letter forwarding it to the Court. In the letter it was stated that he was sending the award duly signed and certified by him. Then turning to the document we find that it begins with the words "now I hereby reproduce a true copy of the said award which is as follows" and this is signed by Sri Dildar Hussain, the umpire. Then follows the copy of the award. At the end we find the words "certified as correct copy of the award, dated the 27th May 1961." Underneath appears the signature of Sri Dildar Hussain, the umpire Clearly, therefore, the document filed is a true or accurate and full reproduction of the original award and it bears the signature of the umpire, Sri Dildar Hussain, and thus is signed copy of the award. The fact that the umpire wrote the words "certified as correct copy of the award, dated the 27th May 1961" above his signature does not in our opinion make any difference, and the document is still a signed copy of the award. If anything, these words show that the document filed is a true copy of the award and as it bears the signature of the umpire, it is a signed copy thereof. It may be added that the words "now I hereby reproduce a true copy of the said award which is as fol1ows" which appear at the beginning of the document and which are signed by the umpire Sri Dildar Hussain also in our opinion are sufficient to show that what was produced in Court was a signed copy of the award as required by S. 14 (2).8. In this view of the matter, it is unnecessary to consider the alternative argument raised on behalf of the appellant.
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New Bank of India Employees Union & Another Vs. Union of India & Others | well as the Union Government considered the total volume of business of both the banks, the rate of promotion in both the banks, the number of employees in both the banks, as well as the impact if the entire length of service of the employees of the transferor bank is taken into account or one time reduced level is taken into account and finally evolved the scheme of placement and modalities for promotion. Having considered the necessary averments made in the affidavits filed by the Union Government as well as by the Reserve Bank of India we are of the considered opinion that in framing the Placement Scheme and determining the ratio of 2:1 in Clauses 4(a)(iii) & 4(b)(ii) the appropriate authorities have taken relevant and germane materials into consideration and the said provision cannot be termed as arbitrary and irrational.30. So far as the fourth question is concerned we do not find any substance of Mr. Raos argument that the Placement Scheme is retrospective in nature. As we have discussed earlier, on deciding to amalgamate the two banks in exercise of power under Section 9 of the Acquisition Act the Union Government framed the scheme of amalgamation and notified the same on 4th September, 1993. But in that scheme excepting making the employees of the transferor bank as employees of the transferee bank, the other questions like their inter-se seniority and fitments in the cadre of the transferee bank had not been decided. On the other hand Clause 5(4) of the Amalgamation Scheme left the matter open for being evolved at a later stage and the complete fusion between the employees of the two banks came only on the subsequent scheme being framed, which scheme was evolved after due deliberations on the relevant materials. The scheme therefore, necessarily have to be given effect with effect from the date of amalgamation and the same cannot be held to be retrospective in nature as contended by Mr. Rao. 31. The only other question which remains for consideration is whether the conclusion of the High Court that the scheme making process under Section 9 of the Acquisition Act is not legislative is correct in law. In view of our conclusions on the four questions formulated, this question is not of much relevance but since the High Court has recorded a conclusion and the learned Additional Solicitor General and Shri Salve advanced the argument we think it appropriate to answer this question also. The High Court relied upon the decision in Sapherds case (supra) and came to hold that the provisions of Section 45 of the Banking Regulation Act being in pari materia with Section 9 of the Banking Companies Acquisition and Transfer of Undertakings Act, 1980, and the scheme framed under Section 45 of the Banking Regulation Act having been held by this Court to be not legislative, the scheme framed under the Acquisition Act as in the present case, must also be held to be not legislative one. It is undisputed that in Sephards case (supra) the amalgamation was of a private bank with a nationalised bank and the provisions of the Banking Regulation Act, 1949 applied. This Court in Sephards case (supra) on examining Section 45(11) of the Banking Regulation Act 1949 came to hold that merely because a scheme framed is required to be laid before both the Houses of Parliament after the same has been sanctioned by the Central Government the Scheme cannot be held to be legislative in nature. But in our considered opinion the High Court has failed to notice the fundamental distinction between the provisions of Section 45 of the Bank in Regulation Act and Section 9 of the Acquisition Act. Under Section 9 of the Acquisition Act under which Act the impugned scheme has been framed, every scheme framed by the Central Government has to be laid before each Houses of Parliament for a total period of 30 days and the Parliament has the power to agree to the Scheme and making any modification or in giving to a decision that the scheme should not be made and it is only thereafter the Scheme has the effect either in the modified form or does not agree. The essential distinction between the two provisions therefore, is that whereas under the Banking Regulation Act the Scheme framed has merely to placed before the Parliament and nothing further but under the Acquisition Act the scheme becomes effective only after the same is placed before both the Houses of Parliament and after the Parliament makes such modification and agrees to the scheme. In this view of the matter the decision of this Court in Sephards case (supra) has no application to a scheme framed under the provisions of the Acquisition Act and in our considered opinion, a scheme framed under Section 9 of the Banking Companies Acquisition and Transfer of Undertakings Act, 1980, is a legislative one. The High Court was in error in holding the scheme not to be a legislative one. 32. Mr. Sharma, the learned senior counsel appearing for the appellant, the Punjab National Bank Employees Federation urged that the ratio of 2:1 fixed under the Placement Scheme infact works out gross injustice. The interest of the employees of the Punjab National bank should not be jeopardised by bringing the employees of the New Bank of India and no credit should be given to the employees of the New Bank of India for their past services rendered. We do not find any force in the aforesaid contention and, as discussed earlier, the ratio of 2:1 was fixed in the Placement Scheme in consultation with the Reserve Bank of India and after a comparative study of the business of the two banks, the rate of promotion, the higher productivity and larger measure of responsibility and higher average business per branch of the Punjab National Bank as compared to the New Bank of India and all other germane considerations. The submission of Mr. Sharma, therefore, is rejected. | 0[ds]18. According to Mr. Rao the aforesaid provision makes it clear that the employees of the transferor bank would continue to be the employees of the transferee bank on the same terms and conditions which they were enjoying under their erstwhile employer, namely, the transferor bank, until and unless the terms and conditions are duly altered by the transferee bank. In that view of the matter the Union Government had no power to frame Clauses 4(a)(iii) & 4(b)(ii) of the Placement Scheme and thereby jeopardise the chances of promotion of the employees of the transferor bank in the transferee bank to their detriment and altering their conditions of service. According to Mr. Rao promotion and seniority are two different concept and Clause 5(4) of the Amalgamation Scheme had merely authorised the Central Government to make another Scheme, a subsidiary one after consultation with the Reserve Bank of India for determining the placement of the employees of the transferor bank and for- determining their inter-se seniority vis-a-vis the employees of the transferee bank. Promotion by no stretch of imagination can be included within the purview of Clause 5(4) of the Amalgamation Scheme. In this view of the matter the impugned clause of the Placement Scheme, namely, Clause 4(a)(iii) & 4(b)(ii) computing the ratio of 2:1 for the purpose of determining the minimum length of service for promotion from subordinate cadre to clerical cadre and also from clerical cadre to officer cadre is wholly without jurisdiction and an arbitrary exercise of power by the Central Government. Mr. Rao contends that the right of promotion of the employees of the transferor bank remains fully protected under Clause 5(2) of the Amalgamation Scheme and it can only be duly altered by the transferee bank and that right cannot be taken away by the Central Government in framing a scheme in the garb of determination of inter se seniority. In this connection Mr. Rao has also advanced an argument that in the minimum, before introducing the scheme and altering the service conditions, the employees should have been given atleast an opportunity of hearing. Mr. Rao placed reliance on the decisions of this Court in the case of K.I. Shephard and Ors. Etc. Etc. v. Union of India and Ors. (1988)ILLJ162SC which was approved and followed in the case of H.L. Terhan v. Union of India [1988] Suppl. 3 SCR 923. In the Shephards case (supra) when some private banks were amalgamated with Punjab National Bank, Canara Bank and State Bank of India in terms of separate schemes drawn under Section 45 of the Banking Regulation Act, 1949, some of the employees of the amalgamated banks were excluded from employment in the transferee banks and such exclusion was made without giving the employees an opportunity of being heard. When the matter had been challenged before the Kerala High Court, the learned Single Judge of the High Court had proposed a post amalgamation hearing but that had been vacated by the Division Bench of the High Court. In that context this Court had held that even a post decisional bearing will not meet the ends of justice and there is no justification to throw out the employees from their employment without giving them an opportunity of representation and giving an opportunity of representation is a condition precedent to the action taken. We fail to understand how this decision is of any assistance to the appellants. In that particular case on account of certain charges against the employees of the private banks they were not given employment in the transferee bank and, therefore, this Court had observed that before excluding them from consideration they had a right to be heard. In the present case none of the employees of the transfer or bank had been excluded from absorption in the transferee bank, on the other hand an option was asked for and thereafter by operation of the Amalgamation Scheme, the employees of the transferor bank have become the employees of the transferee bank and, therefore, question of giving them opportunity of hearing does not arise. In Trehans case (supra) the question for consideration was whether there can be deprivation or curtailment of any existing right or benefit enjoyed by government servant without complying with the rules of natural justice by giving the servant concerned an opportunity of being heard. In that particular case the Caltex Oil Refinery (India) Ltd., a government company (for short Corn"), which was acquired by the Government of India under the provisions of the Caltex (Acquisition of Shares of Caltex Refining (India) Ltd.) Act. 17 of 1977, the Board of Directors of Coril had issued a circular indicating the perquisite admissible to the Management staff should be rationalised in the manner stated in the circular. That circular was challenged by the employees of Corils on the ground that it curtails the existing rights and advantages and such circular should not have been therefore, issued without affording an opportunity of hearing. The High Court had quashed that circular accepting the contention of the employees and on appeal this Court confirmed the decision of the High Court and following the earlier view expressed in Shephards case (supra) held that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by government servant without complying with the rules of natural justice by giving the government servant concerned an opportunity of being heard. We fail to understand how this decision also is applicable to the present case where Section 9 of the Acquisition Act authorises Central Government to make a Scheme of Amalgamation of two banks and in exercise of that power the Central Government after consulting the Reserve Bank of India framed the Amalgamation Scheme and retained to itself the power to frame another scheme for placement and seniority of the employees of the transferor bank vis-avis the employees of the transferee bank and in accordance with that power framed the Placement Scheme. In our considered opinion, neither the Placement Scheme in any way alters the conditions of service of the employees of the transferor bank nor does it require any opportunity of hearing to be given to the employees of the transferor bank before framing of the Placement scheme. Mr. Rao also placed reliance on the decision of this Court in the case of Canara Bank v. MS. Jasra and Ors. (1992)ILLJ777SC . In the aforesaid case the question for consideration was, when some private banks are amalgamated with the Nationalised bank under the provisions of Banking Regulation Act 1949 can the employees of the private banks claim to be governed by an age of superannuation of the transferor bank or they would be governed by the terms and conditions of service applicable to the employees of corresponding ranks or status of the transferee bank. This court answered the question by holding that the employees would be governed by the terms and conditions of service of employees of the corresponding rank of the transferee bank and therefore, their claim to continue in service upto 60 years is unsustainable. Analysing the provisions of the Banking Regulation Act 1949 and referring to proviso (ii) to Clause (i) of Sub-section (5) of Section 45 of the said Act this Court held that the employees of the transferor bank would be entitled to the terms and conditions of service with the employees of the corresponding rank and status of the transferee bank were availing of and therefore the High Court was in error in allowing the claim of the employees of the transferor bank. In our considered opinion this decision is of the assistance to the point which arises for consideration in the present case. Firstly, the provisions of Banking Regulation Act 1949 has no application in the case in hand. Secondly, the point in controversy in the case in hand is different than the point in controversy in that case. Thirdly, Section 9 of the Acquisition Act confers power on the Central Bank to frame the Scheme of Amalgamation and in exercise of that power to Amalgamation Scheme had been framed which came into force on 4th September 1993 and under Clause 5(4) thereof Central Government had retained power to frame the Scheme for placement and inter-se seniority between the employees of the transferor bank with the transferee bank and in accordance with that power the impugned scheme of placement had been framed. The question for consideration therefore, is whether the Central Government had the power to frame the impugned Placement Scheme? As has been noticed earlier the expression placement in Clause 5(4) of the Amalgamation Scheme must be construed to mean re-deployment of the employees fitment of those employees in a grade or rank or cadre in the transferee bank and inter-se seniority of those employees vis-a-vis the employees of the transferee bank in the cadre or grade. If this meaning is given to the expression Placement in Section 5(4) of the Amalgamation Scheme and then the impugned provision of Clause 4(a)(iii) and 4(b)(ii) are considered it is difficult for us to accept the contention of Mr. Rao that it alters the conditions of service of the employees of the transferor bank and beyond the power of the Central Govt.the Central Government decided to amalgamate two banks it has to make a scheme after consulting the Reserve Bank of India under Section 9 of the Acquisition Act. In the case in hand Amalgamation became necessary as the transferor bank was incurring heavy loss and without the amalgamation it would have been totally wound up. When a scheme is framed amalgamating two banks, it is not possible for the Central Government to take the details of the service condition in account and that is why it provided that the employees of the transferor bank would become the employees of the transferee bank on the same terms and conditions, with the same rights to pension, gratuity and other matters which would have been admissible to them if they would have continued as the employees of the transferor bank. But so far as the question of their placement and inter-se seniority vis-a-vis the employees of the transferee bank, the Scheme itself stipulated that in consultation with the Reserve Bank of India the Central Government after taking relevant factors into consideration may frame the Scheme. It is in exercise of this power the placement scheme has been framed and under the Placement Scheme what has been intended is that for determination of the inter-se seniority and in the matter of promotion from subordinate cadre to the clerical cadre and from the clerical cadre to the officers cadre while the computation of years of service rendered is taken into account, the computation shall be made in the ratio of 2:1 i.e. two years of service, in the transferor bank would be considered equivalent to one year of service in the transferee bank. This computation is only one time computation and whether such decision has been taken after taking the relevant factors into account will be considered by us when the question of arbitrariness etc. is considered. But on examining the provisions of the Acquisition Act as well as the provisions of Clause 5(4) of the Amalgamation Scheme framed in exercise of power under Section 9 of the Acquisition Act and the impugned clauses of the Placement Scheme we have no hesitation to come to the conclusion that the Central Govt. did retain the power to frame the Placement Scheme in question which is essential for determination of the placement of the employees of the transferor bank and the inter-se seniority vis-a-vis the employees of the transferee bank and for framing such scheme it was not necessary to afford an opportunity of hearing to the employees of the transferor bank, as in our view there has been no change on conditions of their service. In this view of the matter we answer the first question by holding that the Central Government has the power to frame the subsequent scheme which has been termed by us in this judgment as the Placement Scheme for the placement of the employees of the transferor bank in the transferee bank and for the determination of their inter-se seniority with the employees of the transferee bank.19. Coming down to the second question the legal position is fairly settled that no scheme of amalgamation can be fool proof and a Court would be entitled to interfere only when it comes to the conclusion that either the scheme is arbitrary or irrational or has been framed on some extraneous consideration.Rao, learned Counsel appearing for the appellants on the other hand, urged that the subsequent scheme framed for placement of the employees must be held to be arbitrary as there is no rational for wiping of the past service of the employees of the transferor bank. Relying upon the decision of this Court in the case of K. Madhavan and Am. Etc. v. Union of India and Ors. [1988]1SCR421 the learned Counsel urged that the entire period of service rendered by the employees of the transferor bank can be taken into account for the purpose of their seniority after amalgamation. In the aforesaid case petitioner Madhavan was a permanent officer in the grade of Deputy Commandant. On 14.6.76 it has been found to be equivalent to the grade of S.P. in the CBI. When Madhavans services were taken over by the CBI the question arose whether his past service shall be taken into account for determining his seniority in the CBI and in that contest this Court has observed that his entire period of service should be taken into account.In our considered opinion this decision is of no assistance to the appellant in the present case where a particular scheme was required to be framed after amalgamation of the services of the transferor bank with the transferee bank and in that scheme certain provisions have been made as to how the employees of the transferor bank would be fitted in the transferee bank.26.Mr. Rao, learned Counsel also placed reliance on another decision of this Court in the case of Tej Narain Tiwary v. State of Bihar and Ors. [1993] 2 Suppl. S C C 623 in support of his contention that in a case of amalgamation the entire past service of the employee should be taken into account.In that case the appellant Narain Tiwary had been appointed by the Bihar School Examination Board as Special Officer in August 1969. The said post was abolished with effect from April 1, 1971. He filed a suit and obtained injunction against the abolition of post and termination of his services. In the course of litigation a compromise had been arrived at between the Board and the appellant wherein he was appointed as a Sectional Head Officer and his pay as a Special Officer was also protected. The Board, therefore, passed an order on March 20, 1972 appointing the appellant as a Sectional Head Officer in the general cadre. In the seniority list of Sectional Officers prepared by the Board the appellant had been shown above respondent No. 5 and he had been granted promotion to the post of Asstt. Secretary. The respondent No. 5 therefore, filed a Writ Petition challenging the seniority list. The High Court came to the conclusion that the post of Sectional Officer occupied by the appellant not being a cadre post the services rendered by the appellant as Special officer cannot be taken into account for his seniority in the cadre of Sectional Officer. This Court in appeal reversed the judgment of the High Court and held that the compromise entered into between the parties and the order of March 20, 1972 is capable of being interpreted as an order of amalgamation of the ex cadre post of Special Officer with the cadre of Sectional officer and consequently the appellant would get his seniority from the date of his appointment as a Special Officer. In coming to this conclusion the Court also relied upon the results and orders of the Board itself. We fail to understand how this case can be of any assistance to the appellants in the present case.27. In view of the legal position as discussed above, and on examining the provisions of the Placement Scheme more particularly Clauses 4(a)(iii) & 4(b)(ii) and on consideration of the opinion rendered by the Reserve Bank of India we have no hesitation to come to the conclusion that the said Scheme is neither arbitrary nor irrational and on the other had a just scheme evolved by the Union Government after due consultation with the Reserve Bank of India and Court cannot interfere with such a Scheme.28. Coming to the third question the answer would obviously depend upon the relevant materials considered both by the Reserve Bank of India as well as by the Union Government before framing of the Placement Scheme. At the outset it may be noted that most important function of the Reserve Bank of India is to regulate the Banking system generally it is usually described as a Bankers Bank. The Reserve Bank of India has been given certain advisory and regulatory functions. It advices government and other banks on financial and banking matter. The provisions of the Reserve Bank of India Act shows that a bank has been created as a Central Bank with powers of supervision, advice and inspection over banks particularly those desiring that they be included in the Second Schedule or those scheduled already. The Reserve Bank safeguards the economy and financial stability of the country. We have set out the functions of the Reserve Bank of India because the Placement Scheme which is being impugned in the present case by the employees of the transferor bank had been framed in due consultation with the Reserve Bank of India and the said Reserve Bank has filed affidavits indicating the broad consideration on which the ratio 2:1 has been fixed.The appellants, however, strongly relied upon the fact that both the banks being nationalised banks and the recruitment to both the banks being through the same Selection Board, there is no justification for treating the services of the employees of the transferor bank on 2:1 basis after amalgamation for the purpose of promotion. In our considered opinion the contention of the appellant is wholly unsustainable. As has been stated earlier, the financial loss sustained by the transferor bank had brought the bank to a virtual collapse. It is at that point of time the Reserve Bank on consideration having taken a sympathetic view of the matter and instead of advising winding up of the bank and its liquidation advised for its merger with a stronger bank and the Government of India ultimately accepted the advise of the Reserve Bank. On its amalgamation necessary provisions were required to be made for the placement of the employees of the transferor bank with the employees of the transferee bank. At that stage the bank as well as the Union Government considered the total volume of business of both the banks, the rate of promotion in both the banks, the number of employees in both the banks, as well as the impact if the entire length of service of the employees of the transferor bank is taken into account or one time reduced level is taken into account and finally evolved the scheme of placement and modalities for promotion. Having considered the necessary averments made in the affidavits filed by the Union Government as well as by the Reserve Bank of India we are of the considered opinion that in framing the Placement Scheme and determining the ratio of 2:1 in Clauses 4(a)(iii) & 4(b)(ii) the appropriate authorities have taken relevant and germane materials into consideration and the said provision cannot be termed as arbitrary and irrational.30. So far as the fourth question is concerned we do not find any substance of Mr. Raos argument that the Placement Scheme is retrospective in nature. As we have discussed earlier, on deciding to amalgamate the two banks in exercise of power under Section 9 of the Acquisition Act the Union Government framed the scheme of amalgamation and notified the same on 4th September, 1993. But in that scheme excepting making the employees of the transferor bank as employees of the transferee bank, the other questions like their inter-se seniority and fitments in the cadre of the transferee bank had not been decided. On the other hand Clause 5(4) of the Amalgamation Scheme left the matter open for being evolved at a later stage and the complete fusion between the employees of the two banks came only on the subsequent scheme being framed, which scheme was evolved after due deliberations on the relevant materials. The scheme therefore, necessarily have to be given effect with effect from the date of amalgamation and the same cannot be held to be retrospective in nature as contended by Mr.view of our conclusions on the four questions formulated, this question is not of much relevance but since the High Court has recorded a conclusion and the learned Additional Solicitor General and Shri Salve advanced the argument we think it appropriate to answer this question also. The High Court relied upon the decision in Sapherds case (supra) and came to hold that the provisions of Section 45 of the Banking Regulation Act being in pari materia with Section 9 of the Banking Companies Acquisition and Transfer of Undertakings Act, 1980, and the scheme framed under Section 45 of the Banking Regulation Act having been held by this Court to be not legislative, the scheme framed under the Acquisition Act as in the present case, must also be held to be not legislative one. It is undisputed that in Sephards case (supra) the amalgamation was of a private bank with a nationalised bank and the provisions of the Banking Regulation Act, 1949 applied. This Court in Sephards case (supra) on examining Section 45(11) of the Banking Regulation Act 1949 came to hold that merely because a scheme framed is required to be laid before both the Houses of Parliament after the same has been sanctioned by the Central Government the Scheme cannot be held to be legislative in nature. But in our considered opinion the High Court has failed to notice the fundamental distinction between the provisions of Section 45 of the Bank in Regulation Act and Section 9 of the Acquisition Act. Under Section 9 of the Acquisition Act under which Act the impugned scheme has been framed, every scheme framed by the Central Government has to be laid before each Houses of Parliament for a total period of 30 days and the Parliament has the power to agree to the Scheme and making any modification or in giving to a decision that the scheme should not be made and it is only thereafter the Scheme has the effect either in the modified form or does not agree. The essential distinction between the two provisions therefore, is that whereas under the Banking Regulation Act the Scheme framed has merely to placed before the Parliament and nothing further but under the Acquisition Act the scheme becomes effective only after the same is placed before both the Houses of Parliament and after the Parliament makes such modification and agrees to the scheme. In this view of the matter the decision of this Court in Sephards case (supra) has no application to a scheme framed under the provisions of the Acquisition Act and in our considered opinion, a scheme framed under Section 9 of the Banking Companies Acquisition and Transfer of Undertakings Act, 1980, is a legislative one. The High Court was in error in holding the scheme not to be a legislativedo not find any force in the aforesaid contention and, as discussed earlier, the ratio of 2:1 was fixed in the Placement Scheme in consultation with the Reserve Bank of India and after a comparative study of the business of the two banks, the rate of promotion, the higher productivity and larger measure of responsibility and higher average business per branch of the Punjab National Bank as compared to the New Bank of India and all other germane considerations. The submission of Mr. Sharma, therefore, is rejected. | 0 | 12,102 | 4,361 | ### Instruction:
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well as the Union Government considered the total volume of business of both the banks, the rate of promotion in both the banks, the number of employees in both the banks, as well as the impact if the entire length of service of the employees of the transferor bank is taken into account or one time reduced level is taken into account and finally evolved the scheme of placement and modalities for promotion. Having considered the necessary averments made in the affidavits filed by the Union Government as well as by the Reserve Bank of India we are of the considered opinion that in framing the Placement Scheme and determining the ratio of 2:1 in Clauses 4(a)(iii) & 4(b)(ii) the appropriate authorities have taken relevant and germane materials into consideration and the said provision cannot be termed as arbitrary and irrational.30. So far as the fourth question is concerned we do not find any substance of Mr. Raos argument that the Placement Scheme is retrospective in nature. As we have discussed earlier, on deciding to amalgamate the two banks in exercise of power under Section 9 of the Acquisition Act the Union Government framed the scheme of amalgamation and notified the same on 4th September, 1993. But in that scheme excepting making the employees of the transferor bank as employees of the transferee bank, the other questions like their inter-se seniority and fitments in the cadre of the transferee bank had not been decided. On the other hand Clause 5(4) of the Amalgamation Scheme left the matter open for being evolved at a later stage and the complete fusion between the employees of the two banks came only on the subsequent scheme being framed, which scheme was evolved after due deliberations on the relevant materials. The scheme therefore, necessarily have to be given effect with effect from the date of amalgamation and the same cannot be held to be retrospective in nature as contended by Mr. Rao. 31. The only other question which remains for consideration is whether the conclusion of the High Court that the scheme making process under Section 9 of the Acquisition Act is not legislative is correct in law. In view of our conclusions on the four questions formulated, this question is not of much relevance but since the High Court has recorded a conclusion and the learned Additional Solicitor General and Shri Salve advanced the argument we think it appropriate to answer this question also. The High Court relied upon the decision in Sapherds case (supra) and came to hold that the provisions of Section 45 of the Banking Regulation Act being in pari materia with Section 9 of the Banking Companies Acquisition and Transfer of Undertakings Act, 1980, and the scheme framed under Section 45 of the Banking Regulation Act having been held by this Court to be not legislative, the scheme framed under the Acquisition Act as in the present case, must also be held to be not legislative one. It is undisputed that in Sephards case (supra) the amalgamation was of a private bank with a nationalised bank and the provisions of the Banking Regulation Act, 1949 applied. This Court in Sephards case (supra) on examining Section 45(11) of the Banking Regulation Act 1949 came to hold that merely because a scheme framed is required to be laid before both the Houses of Parliament after the same has been sanctioned by the Central Government the Scheme cannot be held to be legislative in nature. But in our considered opinion the High Court has failed to notice the fundamental distinction between the provisions of Section 45 of the Bank in Regulation Act and Section 9 of the Acquisition Act. Under Section 9 of the Acquisition Act under which Act the impugned scheme has been framed, every scheme framed by the Central Government has to be laid before each Houses of Parliament for a total period of 30 days and the Parliament has the power to agree to the Scheme and making any modification or in giving to a decision that the scheme should not be made and it is only thereafter the Scheme has the effect either in the modified form or does not agree. The essential distinction between the two provisions therefore, is that whereas under the Banking Regulation Act the Scheme framed has merely to placed before the Parliament and nothing further but under the Acquisition Act the scheme becomes effective only after the same is placed before both the Houses of Parliament and after the Parliament makes such modification and agrees to the scheme. In this view of the matter the decision of this Court in Sephards case (supra) has no application to a scheme framed under the provisions of the Acquisition Act and in our considered opinion, a scheme framed under Section 9 of the Banking Companies Acquisition and Transfer of Undertakings Act, 1980, is a legislative one. The High Court was in error in holding the scheme not to be a legislative one. 32. Mr. Sharma, the learned senior counsel appearing for the appellant, the Punjab National Bank Employees Federation urged that the ratio of 2:1 fixed under the Placement Scheme infact works out gross injustice. The interest of the employees of the Punjab National bank should not be jeopardised by bringing the employees of the New Bank of India and no credit should be given to the employees of the New Bank of India for their past services rendered. We do not find any force in the aforesaid contention and, as discussed earlier, the ratio of 2:1 was fixed in the Placement Scheme in consultation with the Reserve Bank of India and after a comparative study of the business of the two banks, the rate of promotion, the higher productivity and larger measure of responsibility and higher average business per branch of the Punjab National Bank as compared to the New Bank of India and all other germane considerations. The submission of Mr. Sharma, therefore, is rejected.
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In our considered opinion the contention of the appellant is wholly unsustainable. As has been stated earlier, the financial loss sustained by the transferor bank had brought the bank to a virtual collapse. It is at that point of time the Reserve Bank on consideration having taken a sympathetic view of the matter and instead of advising winding up of the bank and its liquidation advised for its merger with a stronger bank and the Government of India ultimately accepted the advise of the Reserve Bank. On its amalgamation necessary provisions were required to be made for the placement of the employees of the transferor bank with the employees of the transferee bank. At that stage the bank as well as the Union Government considered the total volume of business of both the banks, the rate of promotion in both the banks, the number of employees in both the banks, as well as the impact if the entire length of service of the employees of the transferor bank is taken into account or one time reduced level is taken into account and finally evolved the scheme of placement and modalities for promotion. Having considered the necessary averments made in the affidavits filed by the Union Government as well as by the Reserve Bank of India we are of the considered opinion that in framing the Placement Scheme and determining the ratio of 2:1 in Clauses 4(a)(iii) & 4(b)(ii) the appropriate authorities have taken relevant and germane materials into consideration and the said provision cannot be termed as arbitrary and irrational.30. So far as the fourth question is concerned we do not find any substance of Mr. Raos argument that the Placement Scheme is retrospective in nature. As we have discussed earlier, on deciding to amalgamate the two banks in exercise of power under Section 9 of the Acquisition Act the Union Government framed the scheme of amalgamation and notified the same on 4th September, 1993. But in that scheme excepting making the employees of the transferor bank as employees of the transferee bank, the other questions like their inter-se seniority and fitments in the cadre of the transferee bank had not been decided. On the other hand Clause 5(4) of the Amalgamation Scheme left the matter open for being evolved at a later stage and the complete fusion between the employees of the two banks came only on the subsequent scheme being framed, which scheme was evolved after due deliberations on the relevant materials. The scheme therefore, necessarily have to be given effect with effect from the date of amalgamation and the same cannot be held to be retrospective in nature as contended by Mr.view of our conclusions on the four questions formulated, this question is not of much relevance but since the High Court has recorded a conclusion and the learned Additional Solicitor General and Shri Salve advanced the argument we think it appropriate to answer this question also. The High Court relied upon the decision in Sapherds case (supra) and came to hold that the provisions of Section 45 of the Banking Regulation Act being in pari materia with Section 9 of the Banking Companies Acquisition and Transfer of Undertakings Act, 1980, and the scheme framed under Section 45 of the Banking Regulation Act having been held by this Court to be not legislative, the scheme framed under the Acquisition Act as in the present case, must also be held to be not legislative one. It is undisputed that in Sephards case (supra) the amalgamation was of a private bank with a nationalised bank and the provisions of the Banking Regulation Act, 1949 applied. This Court in Sephards case (supra) on examining Section 45(11) of the Banking Regulation Act 1949 came to hold that merely because a scheme framed is required to be laid before both the Houses of Parliament after the same has been sanctioned by the Central Government the Scheme cannot be held to be legislative in nature. But in our considered opinion the High Court has failed to notice the fundamental distinction between the provisions of Section 45 of the Bank in Regulation Act and Section 9 of the Acquisition Act. Under Section 9 of the Acquisition Act under which Act the impugned scheme has been framed, every scheme framed by the Central Government has to be laid before each Houses of Parliament for a total period of 30 days and the Parliament has the power to agree to the Scheme and making any modification or in giving to a decision that the scheme should not be made and it is only thereafter the Scheme has the effect either in the modified form or does not agree. The essential distinction between the two provisions therefore, is that whereas under the Banking Regulation Act the Scheme framed has merely to placed before the Parliament and nothing further but under the Acquisition Act the scheme becomes effective only after the same is placed before both the Houses of Parliament and after the Parliament makes such modification and agrees to the scheme. In this view of the matter the decision of this Court in Sephards case (supra) has no application to a scheme framed under the provisions of the Acquisition Act and in our considered opinion, a scheme framed under Section 9 of the Banking Companies Acquisition and Transfer of Undertakings Act, 1980, is a legislative one. The High Court was in error in holding the scheme not to be a legislativedo not find any force in the aforesaid contention and, as discussed earlier, the ratio of 2:1 was fixed in the Placement Scheme in consultation with the Reserve Bank of India and after a comparative study of the business of the two banks, the rate of promotion, the higher productivity and larger measure of responsibility and higher average business per branch of the Punjab National Bank as compared to the New Bank of India and all other germane considerations. The submission of Mr. Sharma, therefore, is rejected.
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Chandra Kant Missir & Others Vs. Balakrishna Missir & Others | kathas 10 dhurs were exchanged by Bouku - out of Khasra No. 1643 for another land. There are again two documents Exts. C and C/-1. Ext. C being a sale deed by Jaibodh son of Basudeo and Ext. C/-1 by Basudeo under which lands which fell to the share of Basudeo had been sold. These documents clearly indicate that parts of the land which were in the possession of Basudeo and his sons were transferred by them. Exhibit C/2 is a sale deed executed by one Subans Pasban and others to Maneshwar Jha and in that document there was a recital stating that "out of three landlords, Balkrishna Missir (son of Makund) was the landlord to the extent of 6 annas, Bouku Missir was to the extent of 5 annas and Jaibodh (son of Basudeo) to the extent of remaining 5 annas".7. These transactions are referable to the title arising under the award made in the suit filed by Basudoe being suit No. 187 of 1914 in the Court of the Subordinate Judge, Darbhanga. Suit No. 187 of 1914 was filed by Basudeo against Makund and Bouku and two others. On September 14, 1914 the Subordinate Judge ordered that a preliminary decree be passed in terms of the arbitrators award and that a Commissioner be appointed to effect partition according to the award of the arbitrators. The terms of the award were :"We have heard the parties and their witnesses. It appears to us that they had settled amongst themselves before the arbitrators of the suit that the plaintiff (Basudeo) should be given 5 annas share, that Bouku should be given 5 annas and Makund should get six annas share in all the properties, movable and immovable. We are also of opinion that the settlement is a fair one inasmuch as Makund was the earning member of the family and by his exertion above the bulk of the properties was acquired. Therefore, we give effect to this settlement and hold that the plaintiff will get 5 annas, Bouku will get 5 annas and Makund will get 6 annas. We also hold that all the properties are joint and hence they should be divided in proportion to the above shares. The property which has been given to the widow of the deceased Ranu under will of September 8, 1913 will remain in her possession during her lifetime, without any power of alienation and on her death it will devolve upon the three brothers or their heirs and representatives in proportion to the said shares. We are also satisfied that Makunds son Toonai has performed the Sradh of Ranu. Hence he should be given one hundred rupees from joint fund. ...xx xx xxBe it noted that the properties to be divided are the lands, houses and bonds only.The claim for rest of the movable properties is disallowed".8. It appears that after this preliminary decree was passed by the Court, a Commissioner was appointed. But ultimately the suit was dismissed on the ground that the Commissioners fee was not paid.But the dismissal of the suit cannot operated to wipe out the preliminary decree.9. Counsel for the plaintiffs sought to raise two contentions before us in support of the plea that the decree was not binding upon the plaintiffs: (1) that Bouku was not served as a party in the suit; and (2) that the arbitrators had acted improperly in giving to Makund 6 annas share, whereas he was entitled to only -/5/4 (five annas four pies) share. There is no substance in either contention.10. But, pursuant to the division made in 1914 the shares of the three branches were demarcated by the Commissioner andthe three branches remained in separated possession of the properties allotted to them under that partition. The record of the suit No. 187 of 1914 was it was reported destroyed. But that fact will not enable the plaintiff to get any advantage because the subsequent conduct of Bouku clearly shows that he had taken possession of the properties pursuant to the award and had acted upon the award as being effective. It would be reasonable to infer that a decree binding a person would not be made unless he was duly served with the writ of summons from the Court.11. The ground that the arbitrators had awarded to Makund a larger share cannot also invalidate the award. It appears that the division was made by agreement between the parties, and Makund was given 6 annas share. Apparently Makund claimed that he was the eldest member and that some of the properties claimed by Basudeo to be joint family properties were acquired by him by his own exertion. The arbitrators apparently accepted that contention and the parties agreed to the award, 35 years after that date and after the terms of the award were carried out, it was not open to one of the parties to raise a contention that the arbitrators had acted improperly in awarding to Makund a larger share than what was awardable to him under the Hindu Law relating to partition.12. The claim to a half anna share in the properties on the footing that Ranus share had devolved upon Bouku is futile. The award in terms provides that Ranus share was to remain in the possession of Alikrani and on her death to be divided between the three branches in the same proportion in which the joint family property was divided. Alikrani died in 1946. Ranu could obviously not make a will of his undivided share in the properties. But the parties agreed that the share of Ranu should be held by his widow, Alikrani for her life and after her death it should be divided according to the shares in the joint property. Under the terms of the award Bouku gets no interest in the property and his claim that his son Rangi was adopted, and that he Bouku had by adverse possession acquired title to Ranus share is not supported by any evidence . | 0[ds]4. On the evidence it is clear that there was severance of the joint family status and the members of the family were divided in 1914 and their respective shares were since then separately enjoyed and possessed by them thereafter and were entered in the revenue records in their names. That the three members of the familyMakund, Basudeo and Boukuwere in possession of their separate shares in the property of the joint family is established by a mass of evidence and the admission made by Bouku and his sons andparagraph 14 it is averred that Ranu Misser had appointed Rangi son of Bouku as adopted son and that Ranu thereafter lived with him and on his death Rangi performed the obsequial ceremonies and entered into possession and occupation of his entire estate as legal heir and had been appropriating the produce thereof since that day. These averments clearly show that the three branches were in separate possession of their respective shares.It appears that after this preliminary decree was passed by the Court, a Commissioner was appointed. But ultimately the suit was dismissed on the ground that the Commissioners fee was not paid.But the dismissal of the suit cannot operated to wipe out the preliminary decree.Counsel for the plaintiffs sought to raise two contentions before us in support of the plea that the decree was not binding upon the plaintiffs: (1) that Bouku was not served as a party in the suit; and (2) that the arbitrators had acted improperly in giving to Makund 6 annas share, whereas he was entitled to only/5/4 (five annas four pies) share.There is no substance in either contention.10. But, pursuant to the division made in 1914 the shares of the three branches were demarcated by the Commissioner andthe three branches remained in separated possession of the properties allotted to them under that partition. The record of the suit No. 187 of 1914 was it was reported destroyed. But that fact will not enable the plaintiff to get any advantage because the subsequent conduct of Bouku clearly shows that he had taken possession of the properties pursuant to the award and had acted upon the award as being effective. It would be reasonable to infer that a decree binding a person would not be made unless he was duly served with the writ of summons from the Court.The ground that the arbitrators had awarded to Makund a larger share cannot also invalidate the award. It appears that the division was made by agreement between the parties, and Makund was given 6 annas share. Apparently Makund claimed that he was the eldest member and that some of the properties claimed by Basudeo to be joint family properties were acquired by him by his own exertion. The arbitrators apparently accepted that contention and the parties agreed to the award, 35 years after that date and after the terms of the award were carried out, it was not open to one of the parties to raise a contention that the arbitrators had acted improperly in awarding to Makund a larger share than what was awardable to him under the Hindu Law relating to partition.12. The claim to a half anna share in the properties on the footing that Ranus share had devolved upon Bouku is futile. The award in terms provides that Ranus share was to remain in the possession of Alikrani and on her death to be divided between the three branches in the same proportion in which the joint family property was divided. Alikrani died in 1946. Ranu could obviously not make a will of his undivided share in the properties. But the parties agreed that the share of Ranu should be held by his widow, Alikrani for her life and after her death it should be divided according to the shares in the joint property. Under the terms of the award Bouku gets no interest in the property and his claim that his son Rangi was adopted, and that he Bouku had by adverse possession acquired title to Ranus share is not supported by any evidence . | 0 | 2,091 | 722 | ### 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:
kathas 10 dhurs were exchanged by Bouku - out of Khasra No. 1643 for another land. There are again two documents Exts. C and C/-1. Ext. C being a sale deed by Jaibodh son of Basudeo and Ext. C/-1 by Basudeo under which lands which fell to the share of Basudeo had been sold. These documents clearly indicate that parts of the land which were in the possession of Basudeo and his sons were transferred by them. Exhibit C/2 is a sale deed executed by one Subans Pasban and others to Maneshwar Jha and in that document there was a recital stating that "out of three landlords, Balkrishna Missir (son of Makund) was the landlord to the extent of 6 annas, Bouku Missir was to the extent of 5 annas and Jaibodh (son of Basudeo) to the extent of remaining 5 annas".7. These transactions are referable to the title arising under the award made in the suit filed by Basudoe being suit No. 187 of 1914 in the Court of the Subordinate Judge, Darbhanga. Suit No. 187 of 1914 was filed by Basudeo against Makund and Bouku and two others. On September 14, 1914 the Subordinate Judge ordered that a preliminary decree be passed in terms of the arbitrators award and that a Commissioner be appointed to effect partition according to the award of the arbitrators. The terms of the award were :"We have heard the parties and their witnesses. It appears to us that they had settled amongst themselves before the arbitrators of the suit that the plaintiff (Basudeo) should be given 5 annas share, that Bouku should be given 5 annas and Makund should get six annas share in all the properties, movable and immovable. We are also of opinion that the settlement is a fair one inasmuch as Makund was the earning member of the family and by his exertion above the bulk of the properties was acquired. Therefore, we give effect to this settlement and hold that the plaintiff will get 5 annas, Bouku will get 5 annas and Makund will get 6 annas. We also hold that all the properties are joint and hence they should be divided in proportion to the above shares. The property which has been given to the widow of the deceased Ranu under will of September 8, 1913 will remain in her possession during her lifetime, without any power of alienation and on her death it will devolve upon the three brothers or their heirs and representatives in proportion to the said shares. We are also satisfied that Makunds son Toonai has performed the Sradh of Ranu. Hence he should be given one hundred rupees from joint fund. ...xx xx xxBe it noted that the properties to be divided are the lands, houses and bonds only.The claim for rest of the movable properties is disallowed".8. It appears that after this preliminary decree was passed by the Court, a Commissioner was appointed. But ultimately the suit was dismissed on the ground that the Commissioners fee was not paid.But the dismissal of the suit cannot operated to wipe out the preliminary decree.9. Counsel for the plaintiffs sought to raise two contentions before us in support of the plea that the decree was not binding upon the plaintiffs: (1) that Bouku was not served as a party in the suit; and (2) that the arbitrators had acted improperly in giving to Makund 6 annas share, whereas he was entitled to only -/5/4 (five annas four pies) share. There is no substance in either contention.10. But, pursuant to the division made in 1914 the shares of the three branches were demarcated by the Commissioner andthe three branches remained in separated possession of the properties allotted to them under that partition. The record of the suit No. 187 of 1914 was it was reported destroyed. But that fact will not enable the plaintiff to get any advantage because the subsequent conduct of Bouku clearly shows that he had taken possession of the properties pursuant to the award and had acted upon the award as being effective. It would be reasonable to infer that a decree binding a person would not be made unless he was duly served with the writ of summons from the Court.11. The ground that the arbitrators had awarded to Makund a larger share cannot also invalidate the award. It appears that the division was made by agreement between the parties, and Makund was given 6 annas share. Apparently Makund claimed that he was the eldest member and that some of the properties claimed by Basudeo to be joint family properties were acquired by him by his own exertion. The arbitrators apparently accepted that contention and the parties agreed to the award, 35 years after that date and after the terms of the award were carried out, it was not open to one of the parties to raise a contention that the arbitrators had acted improperly in awarding to Makund a larger share than what was awardable to him under the Hindu Law relating to partition.12. The claim to a half anna share in the properties on the footing that Ranus share had devolved upon Bouku is futile. The award in terms provides that Ranus share was to remain in the possession of Alikrani and on her death to be divided between the three branches in the same proportion in which the joint family property was divided. Alikrani died in 1946. Ranu could obviously not make a will of his undivided share in the properties. But the parties agreed that the share of Ranu should be held by his widow, Alikrani for her life and after her death it should be divided according to the shares in the joint property. Under the terms of the award Bouku gets no interest in the property and his claim that his son Rangi was adopted, and that he Bouku had by adverse possession acquired title to Ranus share is not supported by any evidence .
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0
### Explanation:
4. On the evidence it is clear that there was severance of the joint family status and the members of the family were divided in 1914 and their respective shares were since then separately enjoyed and possessed by them thereafter and were entered in the revenue records in their names. That the three members of the familyMakund, Basudeo and Boukuwere in possession of their separate shares in the property of the joint family is established by a mass of evidence and the admission made by Bouku and his sons andparagraph 14 it is averred that Ranu Misser had appointed Rangi son of Bouku as adopted son and that Ranu thereafter lived with him and on his death Rangi performed the obsequial ceremonies and entered into possession and occupation of his entire estate as legal heir and had been appropriating the produce thereof since that day. These averments clearly show that the three branches were in separate possession of their respective shares.It appears that after this preliminary decree was passed by the Court, a Commissioner was appointed. But ultimately the suit was dismissed on the ground that the Commissioners fee was not paid.But the dismissal of the suit cannot operated to wipe out the preliminary decree.Counsel for the plaintiffs sought to raise two contentions before us in support of the plea that the decree was not binding upon the plaintiffs: (1) that Bouku was not served as a party in the suit; and (2) that the arbitrators had acted improperly in giving to Makund 6 annas share, whereas he was entitled to only/5/4 (five annas four pies) share.There is no substance in either contention.10. But, pursuant to the division made in 1914 the shares of the three branches were demarcated by the Commissioner andthe three branches remained in separated possession of the properties allotted to them under that partition. The record of the suit No. 187 of 1914 was it was reported destroyed. But that fact will not enable the plaintiff to get any advantage because the subsequent conduct of Bouku clearly shows that he had taken possession of the properties pursuant to the award and had acted upon the award as being effective. It would be reasonable to infer that a decree binding a person would not be made unless he was duly served with the writ of summons from the Court.The ground that the arbitrators had awarded to Makund a larger share cannot also invalidate the award. It appears that the division was made by agreement between the parties, and Makund was given 6 annas share. Apparently Makund claimed that he was the eldest member and that some of the properties claimed by Basudeo to be joint family properties were acquired by him by his own exertion. The arbitrators apparently accepted that contention and the parties agreed to the award, 35 years after that date and after the terms of the award were carried out, it was not open to one of the parties to raise a contention that the arbitrators had acted improperly in awarding to Makund a larger share than what was awardable to him under the Hindu Law relating to partition.12. The claim to a half anna share in the properties on the footing that Ranus share had devolved upon Bouku is futile. The award in terms provides that Ranus share was to remain in the possession of Alikrani and on her death to be divided between the three branches in the same proportion in which the joint family property was divided. Alikrani died in 1946. Ranu could obviously not make a will of his undivided share in the properties. But the parties agreed that the share of Ranu should be held by his widow, Alikrani for her life and after her death it should be divided according to the shares in the joint property. Under the terms of the award Bouku gets no interest in the property and his claim that his son Rangi was adopted, and that he Bouku had by adverse possession acquired title to Ranus share is not supported by any evidence .
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Bharat Hydro Power Corpn. Ltd. Vs. State Of Assam | 11) are not applicable to the appellants as they are not licensees: 32. Faced with this situation Mr. V.R. Reddy, learned senior counsel for the the appellants, submitted that the appellants are deemed licensees under the provisions of Act of 1948. For this he has referred to Section 26A of the Act of 1948. Section 26A reads as: "26A. Applicability of the provisions of Act 9 of 1910 to Generating Company. (1) Notwithstanding anything contained in sub-section (2), nothing in the Indian Electricity Act, 1910, shall be deemed to require a Generating Company to take out a licence under that Act, or to obtain sanction of the State Government for the purpose of carrying on any of its activities.(2) Subject to the provisions of this Act, Sections 12 to 19 (both inclusive) of the Indian Electricity Act, 1910 (9 of 1910) and clauses XIV to XVII (both inclusive) of the Schedule thereto, shall, as far as may be, apply in relation to a Generating Company as they apply in relation to a licensee under that Act (hereafter in this section referred to as the licensee) and in particular a Generating Company may, in connection with the performance of its duties, exercise -(a) all or any of the powers conferred on a licensee by sub-section (1) of Section 12 of the Indian Electricity Act, 1910,as if -(i) the reference therein to licensee were a reference to the Generating Company;(ii) the reference to the terms and conditions of licence were a reference to the provisions of this Act and to the articles of association of the Generating Company; and(iii) the reference to the area of supply were a reference to the area specified under sub-section (3) of section 15A in relation to the Generating Company;(b) all or any of the powers conferred on a licensee by sub-section (1) of section 14 of the Indian Electricity Act, 1910 (9 of 1910), as if-(i) the references therein to licensee were references to the Generating Company, and(ii) the Generating Company had the powers of a licensee under the said Act.(3) The provisions of section 30 of the Indian Electricity Act, 1910 (9 of 1910) shall not apply to the transmission or use of energy by a Generating Company.(4) For the removal of doubts, it is hereby declared that sections 31 to 34 (both inclusive) of the Indian Electricity Act, 1910 (9 of 1910) shall apply to a Generating Company". 33. Section 26A provides that notwithstanding the provisions of Sub-Section (2) a generating company would not be a required to take a licence under the Act of 1910 or to obtain sanction of the State Government for the purpose of carrying on any of its activities. Under sub-section (2) provisions of Sections 12 to 19 of the Act of 1910 are made applicable to a generating company as they apply to a licensee under the 1910 Act. If it is to be noted that provisions of Sections 3 to 11 of 1910 Act have not been made applicable to the generating company. 34. "Generating Company" has been defined in Section 2(4A) of the 1948 Act to mean: "Generating Company means a company registered under the Companies Act 1956 (1 of 1956) and which has among its objects the establishment operation and maintenance of generating stations." 35. "Licensee has been defined under this Act in Section 2(6) as under: "Licensee" means a person license under Part II of the Indian Electricity Act, 1910 (9 of 1910) to supply energy or a person who has obtained sanction under Section 28 of that Act to engage in the business of supplying energy but the provisions of Section 26, or 26A of this Act notwitstanding, does not include the Board or a Generating Company." 36. A combined reading of Sections 2(4A) and 2(6) makes it clear that even if the appellant No.1 is taken to be a generating company (which is not necessary to be determined in this case) it would not be a license because the generating company has been specifically excluded from being a licensee notwithstanding the provisions of Sections 26 or 26A of the 1948 Act. As pointed out earlier only Sections 12 to 19 of the Act of 1910 have been made applicable to a generating company. Sections 3 to 11 of Act of 1910 do not apply to a generating company. 37. Section 37 of Act of 1948 provides for purchase of generating stations or undertakings or main transmission lines by the Board. This Section would also not apply to the present case. The legislature in its wisdom made only certain provisions of Act of 1910 applicable to a generating company in Section 26A. Contention that the impugned Act is in violation of provisions of Act of 1910 or the Act or 1948 has no basis to stand on.38. The impugned Act and the Central Acts in the instant case operate in two different fields without encroaching upon each others field in as much as the true nature and character of the impugned State Act is to acquire the undertaking and pay compensation as provided in the Act whereas both the Central Acts (Acts of 1910 and 1948) have made general provisions with regard to supply and use of electrical energy. The provisions regarding purchase of undertaking in the Act of 1910 would not be applicable as the appellants are not licensees within the meaning of the Act of 1910. There is not even a semblance of conflict what to talk of direct conflict between the impugned State Act and the Central Acts to bring about the situation where one cannot be obeyed without disobeying the others. Both the Acts can operate simultaneously as they do not occupy the same field. As the enactments operate in two different fields without encroaching upon each others field there is no repugnancy.39. Since there is no repugnancy the question of the State Act being kept for the consideration of the President or receiving his assent did not arise. | 0[ds]We do not find any substance in this submission.Section 37 of Act of 1948 provides for purchase of generating stations or undertakings or main transmission lines by the Board. This Section would also not apply to the present case. The legislature in its wisdom made only certain provisions of Act of 1910 applicable to a generating company in Section 26A. Contention that the impugned Act is in violation of provisions of Act of 1910 or the Act or 1948 has no basis to stand on.38. The impugned Act and the Central Acts in the instant case operate in two different fields without encroaching upon each others field in as much as the true nature and character of the impugned State Act is to acquire the undertaking and pay compensation as provided in the Act whereas both the Central Acts (Acts of 1910 and 1948) have made general provisions with regard to supply and use of electrical energy. The provisions regarding purchase of undertaking in the Act of 1910 would not be applicable as the appellants are not licensees within the meaning of the Act of 1910. There is not even a semblance of conflict what to talk of direct conflict between the impugned State Act and the Central Acts to bring about the situation where one cannot be obeyed without disobeying the others. Both the Acts can operate simultaneously as they do not occupy the same field. As the enactments operate in two different fields without encroaching upon each others field there is no repugnancy.39. Since there is no repugnancy the question of the State Act being kept for the consideration of the President or receiving his assent did not arise. | 0 | 8,116 | 298 | ### 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:
11) are not applicable to the appellants as they are not licensees: 32. Faced with this situation Mr. V.R. Reddy, learned senior counsel for the the appellants, submitted that the appellants are deemed licensees under the provisions of Act of 1948. For this he has referred to Section 26A of the Act of 1948. Section 26A reads as: "26A. Applicability of the provisions of Act 9 of 1910 to Generating Company. (1) Notwithstanding anything contained in sub-section (2), nothing in the Indian Electricity Act, 1910, shall be deemed to require a Generating Company to take out a licence under that Act, or to obtain sanction of the State Government for the purpose of carrying on any of its activities.(2) Subject to the provisions of this Act, Sections 12 to 19 (both inclusive) of the Indian Electricity Act, 1910 (9 of 1910) and clauses XIV to XVII (both inclusive) of the Schedule thereto, shall, as far as may be, apply in relation to a Generating Company as they apply in relation to a licensee under that Act (hereafter in this section referred to as the licensee) and in particular a Generating Company may, in connection with the performance of its duties, exercise -(a) all or any of the powers conferred on a licensee by sub-section (1) of Section 12 of the Indian Electricity Act, 1910,as if -(i) the reference therein to licensee were a reference to the Generating Company;(ii) the reference to the terms and conditions of licence were a reference to the provisions of this Act and to the articles of association of the Generating Company; and(iii) the reference to the area of supply were a reference to the area specified under sub-section (3) of section 15A in relation to the Generating Company;(b) all or any of the powers conferred on a licensee by sub-section (1) of section 14 of the Indian Electricity Act, 1910 (9 of 1910), as if-(i) the references therein to licensee were references to the Generating Company, and(ii) the Generating Company had the powers of a licensee under the said Act.(3) The provisions of section 30 of the Indian Electricity Act, 1910 (9 of 1910) shall not apply to the transmission or use of energy by a Generating Company.(4) For the removal of doubts, it is hereby declared that sections 31 to 34 (both inclusive) of the Indian Electricity Act, 1910 (9 of 1910) shall apply to a Generating Company". 33. Section 26A provides that notwithstanding the provisions of Sub-Section (2) a generating company would not be a required to take a licence under the Act of 1910 or to obtain sanction of the State Government for the purpose of carrying on any of its activities. Under sub-section (2) provisions of Sections 12 to 19 of the Act of 1910 are made applicable to a generating company as they apply to a licensee under the 1910 Act. If it is to be noted that provisions of Sections 3 to 11 of 1910 Act have not been made applicable to the generating company. 34. "Generating Company" has been defined in Section 2(4A) of the 1948 Act to mean: "Generating Company means a company registered under the Companies Act 1956 (1 of 1956) and which has among its objects the establishment operation and maintenance of generating stations." 35. "Licensee has been defined under this Act in Section 2(6) as under: "Licensee" means a person license under Part II of the Indian Electricity Act, 1910 (9 of 1910) to supply energy or a person who has obtained sanction under Section 28 of that Act to engage in the business of supplying energy but the provisions of Section 26, or 26A of this Act notwitstanding, does not include the Board or a Generating Company." 36. A combined reading of Sections 2(4A) and 2(6) makes it clear that even if the appellant No.1 is taken to be a generating company (which is not necessary to be determined in this case) it would not be a license because the generating company has been specifically excluded from being a licensee notwithstanding the provisions of Sections 26 or 26A of the 1948 Act. As pointed out earlier only Sections 12 to 19 of the Act of 1910 have been made applicable to a generating company. Sections 3 to 11 of Act of 1910 do not apply to a generating company. 37. Section 37 of Act of 1948 provides for purchase of generating stations or undertakings or main transmission lines by the Board. This Section would also not apply to the present case. The legislature in its wisdom made only certain provisions of Act of 1910 applicable to a generating company in Section 26A. Contention that the impugned Act is in violation of provisions of Act of 1910 or the Act or 1948 has no basis to stand on.38. The impugned Act and the Central Acts in the instant case operate in two different fields without encroaching upon each others field in as much as the true nature and character of the impugned State Act is to acquire the undertaking and pay compensation as provided in the Act whereas both the Central Acts (Acts of 1910 and 1948) have made general provisions with regard to supply and use of electrical energy. The provisions regarding purchase of undertaking in the Act of 1910 would not be applicable as the appellants are not licensees within the meaning of the Act of 1910. There is not even a semblance of conflict what to talk of direct conflict between the impugned State Act and the Central Acts to bring about the situation where one cannot be obeyed without disobeying the others. Both the Acts can operate simultaneously as they do not occupy the same field. As the enactments operate in two different fields without encroaching upon each others field there is no repugnancy.39. Since there is no repugnancy the question of the State Act being kept for the consideration of the President or receiving his assent did not arise.
### Response:
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### Explanation:
We do not find any substance in this submission.Section 37 of Act of 1948 provides for purchase of generating stations or undertakings or main transmission lines by the Board. This Section would also not apply to the present case. The legislature in its wisdom made only certain provisions of Act of 1910 applicable to a generating company in Section 26A. Contention that the impugned Act is in violation of provisions of Act of 1910 or the Act or 1948 has no basis to stand on.38. The impugned Act and the Central Acts in the instant case operate in two different fields without encroaching upon each others field in as much as the true nature and character of the impugned State Act is to acquire the undertaking and pay compensation as provided in the Act whereas both the Central Acts (Acts of 1910 and 1948) have made general provisions with regard to supply and use of electrical energy. The provisions regarding purchase of undertaking in the Act of 1910 would not be applicable as the appellants are not licensees within the meaning of the Act of 1910. There is not even a semblance of conflict what to talk of direct conflict between the impugned State Act and the Central Acts to bring about the situation where one cannot be obeyed without disobeying the others. Both the Acts can operate simultaneously as they do not occupy the same field. As the enactments operate in two different fields without encroaching upon each others field there is no repugnancy.39. Since there is no repugnancy the question of the State Act being kept for the consideration of the President or receiving his assent did not arise.
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IFFCO-TOKIO GENERAL INSURANCE COMPANY LTD Vs. M/s NEW INDIA DETERGENTS LTD. & ANR | 1. The instant statutory appeal is directed against the judgment and order dated 14.02.2022 passed by the National Consumer Disputes Redressal Commission, New Delhi (the Commission for short) in Consumer Complaint No.2042 of 2016. 2. Accepting the claim raised by the complainant, the Commission directed the appellant to pay to the complainant a sum of Rs.80,18,944/- towards storage charges within eight weeks from the date of order passed by the Commission, failing which the appellant was directed to pay interest on that amount @ 9% per annum. 3. Mr. Shivam Singh, learned Advocate appearing for the appellant has invited our attention to Clause 6.1 of the concerned Insurance Policy to submit that there was a total Exclusion and the insurance company would not be liable. 4. With his able assistance, we have gone through the entire record. 5. We affirm the view taken by the Commission that the matter would not be covered by the Exclusion Clause in terms of Clause 6.1 of the Policy. In the circumstances, the order passed by the Commission does not call for any interference. | 0[ds]4. With his able assistance, we have gone through the entire record.5. We affirm the view taken by the Commission that the matter would not be covered by the Exclusion Clause in terms of Clause 6.1 of the Policy. In the circumstances, the order passed by the Commission does not call for any interference. | 0 | 200 | 64 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
1. The instant statutory appeal is directed against the judgment and order dated 14.02.2022 passed by the National Consumer Disputes Redressal Commission, New Delhi (the Commission for short) in Consumer Complaint No.2042 of 2016. 2. Accepting the claim raised by the complainant, the Commission directed the appellant to pay to the complainant a sum of Rs.80,18,944/- towards storage charges within eight weeks from the date of order passed by the Commission, failing which the appellant was directed to pay interest on that amount @ 9% per annum. 3. Mr. Shivam Singh, learned Advocate appearing for the appellant has invited our attention to Clause 6.1 of the concerned Insurance Policy to submit that there was a total Exclusion and the insurance company would not be liable. 4. With his able assistance, we have gone through the entire record. 5. We affirm the view taken by the Commission that the matter would not be covered by the Exclusion Clause in terms of Clause 6.1 of the Policy. In the circumstances, the order passed by the Commission does not call for any interference.
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### Explanation:
4. With his able assistance, we have gone through the entire record.5. We affirm the view taken by the Commission that the matter would not be covered by the Exclusion Clause in terms of Clause 6.1 of the Policy. In the circumstances, the order passed by the Commission does not call for any interference.
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State of Madhya Pradesh Vs. State of Maharashtra and Others | Rule 2 of the Code of Civil Procedure cannot operate is that the plaintiffs ca use of action in the 1956 suit is totally different from the cause of action in the 1949 suit. See Pavana Reena Saminathan v. Palaniappa(I.A. 142.).18. This Court in Jai Chand Sawhney v. Union of India ([1970] S.C.R. 222.) held that in a suit for setting aside the order of dismissal and for arrears of salary a claim for salary for the period prior to three years of the suit would be barred. The reason given is that when the order of dismissal is set aside the Government servant is deemed to be in service throughout the period during which the order of dismissal remains operative. Once an order of dismissal is declared bad it is held to be bad from the date of dismissal and salary would be due from the date when the dismissal order was bad.19. The same view has been taken by this Court in Sakal Dean Sahai Srivastava v. Union of India([1974] 2 S.C.R 485.). In that case the plaintiff filed a suit on 27 November, 1962 for a declaration that from 1 July, 1949 the date of illegal reversion up to 30 September, 1959 the date of his retirement he was a railway employee.20. Relying on the decision of this Court in Jai Chand Sawhneys case and Sakal Deeps case (supra) counsel for Madhya Pradesh contended that the plaintiff would not be entitled to more than three years salary. The present case is not one of setting aside an order of dismissal simpliciter. When the plaintiff filed a suit in 1949 he could not ask for arrears of salary. Pursuant to the decree dated 30 August, 1953 in his favour he was reinstated on 1 2 December, 1953. Three features are to be borne in mind in appreciating the plaintiffs case from the point of view of limitation. First the plaintiff became entitled to salary for the period 16 September, 1943 up t o the date of reinstatement on 12 December, 1953, only when pursuant to the decree dated 30 August, 1953 there was actual reinstatement of the plaintiff on 12 December, 1953. Second, the plaintiff was again suspended on 19 January, 1954 and was dismissed on 23 February 1956. The Madhya Pradesh Government on 5 March, 1954 decided that during the period of first suspension till his reinstatement on 12 December, 1953 he was not entitled to salary. Again on 29 January, 1956 the Madhya Pradesh Government decided under Fundamental Rule 54(iii ) that during the period of suspension from 16 September 1943 to 12 December 1953 and again from 19 January 1954 to 23 February 1956 he would not be entitled to any payment of allowances.On these facts two consequences arise in the present appeal. First, since the plaintiff was under suspension from 16 September, 1943 till 12 December, 1953 when he was rein- stated and again suspended from 19 January, 1954 till 23 February, 1956 when he was dismissed, his suit on 6 October, 1956 is within a period of three years from the date of his reinstatement on 12 December, 1953. Second, during the period of suspension he was not entitled to salary under Fundamental Rule 53. Further decision to that effect was taken by the Madhya Pradesh Government on 28 January, 1956 under Fundamental Rule 54. Therefore, the plaintiffs cause of action for salary for the period of suspension did not accrue until he was reinstated on 12 December, 1953. The plaintiffs salary accrued only when he was reinstated as a result of the decree setting aside the orders of suspension and of dismissal.The rulings of this Court in Jai Chand Sawhneys case (supra) and Sakal Deeps case (supra) do. not apply to the present appeal because there was no aspect of any suspension order remaining operative until the fact of reinstatement pursuant to the decree.21. The plaintiffs cause of action for arrears of salary is this. When the plaintiff was reinstated on 12 December, 1953 pursuant to the decree dated 30 August, 1953 the plaintiff became entitled to salary which was suspended during the period of suspension. The plaintiff was again suspended from 19 January, 1954 and he was dismissed from service on 23 February, 1956. Therefore, when the plaintiff filed the suit on 6 October, 1956 his entire claim for salary is founded first on his reinstatement on 12 December, 1953 pursuant to the decree and second on the order of suspension dated 19 January, 1954 and the order of dismissal on 23 February 1956 which the plaintiff challenged as illegal.The original order of suspension on 16 September, 1943 as welt as the original dismissal dated 7 November, 194 5 was declared to be illegal by the decree dated 30 August, 1953. Therefore, when the plaintiff was reinstated on 12 December, 1953 it is then that the plaintiffs claim for salary accrued due. This salary was again suspended from 19 January, 1954. Dismissal on 23 February, 1956 was at a time when the plaintiff was still under suspension. The order of suspension does not put an end to his service. Suspension merely suspends the claim to salary. During suspension there is suspension allowance. See Khem Chand v. Union of India(1) where this Court said that the real effect of the order of suspension is that though he continues to be a member of the service he is not permitted to work and is paid only subsistence allowance which is less than his salary. Under Fundamental Rule 52 the pay an d allowance of a Government servant who is dismissed or removed from service, cease from the date. of his dismissal or removal. Therefore, there would be no question of salary accruing or accruing due so long as orders of suspension and dismissal stand. The High Court was correct in the conclusion that the plaintiffs claim for salary accrued due only on the order of dismissal dated 23 February, 1956 being set aside.22. | 0[ds]Relying on the decision of this Court in Jai Chand Sawhneys case and Sakal Deeps case (supra) counsel for Madhya Pradesh contended that the plaintiff would not be entitled to more than three years salary. The present case is not one of setting aside an order of dismissal simpliciter. When the plaintiff filed a suit in 1949 he could not ask for arrears of salary. Pursuant to the decree dated 30 August, 1953 in his favour he was reinstated on 1 2 December, 1953. Three features are to be borne in mind in appreciating the plaintiffs case from the point of view of limitation. First the plaintiff became entitled to salary for the period 16 September, 1943 up t o the date of reinstatement on 12 December, 1953, only when pursuant to the decree dated 30 August, 1953 there was actual reinstatement of the plaintiff on 12 December, 1953. Second, the plaintiff was again suspended on 19 January, 1954 and was dismissed on 23 February 1956. The Madhya Pradesh Government on 5 March, 1954 decided that during the period of first suspension till his reinstatement on 12 December, 1953 he was not entitled to salary. Again on 29 January, 1956 the Madhya Pradesh Government decided under Fundamental Rule 54(iii ) that during the period of suspension from 16 September 1943 to 12 December 1953 and again from 19 January 1954 to 23 February 1956 he would not be entitled to any payment of allowances.On these facts two consequences arise in the present appeal. First, since the plaintiff was under suspension from 16 September, 1943 till 12 December, 1953 when he was rein- stated and again suspended from 19 January, 1954 till 23 February, 1956 when he was dismissed, his suit on 6 October, 1956 is within a period of three years from the date of his reinstatement on 12 December, 1953. Second, during the period of suspension he was not entitled to salary under Fundamental Rule 53. Further decision to that effect was taken by the Madhya Pradesh Government on 28 January, 1956 under Fundamental Rule 54. Therefore, the plaintiffs cause of action for salary for the period of suspension did not accrue until he was reinstated on 12 December, 1953. The plaintiffs salary accrued only when he was reinstated as a result of the decree setting aside the orders of suspension and ofrulings of this Court in Jai Chand Sawhneys case (supra) and Sakal Deeps case (supra) do. not apply to the present appeal because there was no aspect of any suspension order remaining operative until the fact of reinstatement pursuant to theplaintiffs cause of action for arrears of salary is this. When the plaintiff was reinstated on 12 December, 1953 pursuant to the decree dated 30 August, 1953 the plaintiff became entitled to salary which was suspended during the period of suspension. The plaintiff was again suspended from 19 January, 1954 and he was dismissed from service on 23 February, 1956. Therefore, when the plaintiff filed the suit on 6 October, 1956 his entire claim for salary is founded first on his reinstatement on 12 December, 1953 pursuant to the decree and second on the order of suspension dated 19 January, 1954 and the order of dismissal on 23 February 1956 which the plaintiff challenged as illegal.The original order of suspension on 16 September, 1943 as welt as the original dismissal dated 7 November, 194 5 was declared to be illegal by the decree dated 30 August, 1953. Therefore, when the plaintiff was reinstated on 12 December, 1953 it is then that the plaintiffs claim for salary accrued due. This salary was again suspended from 19 January, 1954. Dismissal on 23 February, 1956 was at a time when the plaintiff was still under suspension. The order of suspension does not put an end to his service. Suspension merely suspends the claim to salary. During suspension there is suspension allowance. See Khem Chand v. Union of India(1) where this Court said that the real effect of the order of suspension is that though he continues to be a member of the service he is not permitted to work and is paid only subsistence allowance which is less than his salary. Under Fundamental Rule 52 the pay an d allowance of a Government servant who is dismissed or removed from service, cease from the date. of his dismissal or removal. Therefore, there would be no question of salary accruing or accruing due so long as orders of suspension and dismissal stand. The High Court was correct in the conclusion that the plaintiffs claim for salary accrued due only on the order of dismissal dated 23 February, 1956 being set aside. | 0 | 4,905 | 866 | ### 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:
Rule 2 of the Code of Civil Procedure cannot operate is that the plaintiffs ca use of action in the 1956 suit is totally different from the cause of action in the 1949 suit. See Pavana Reena Saminathan v. Palaniappa(I.A. 142.).18. This Court in Jai Chand Sawhney v. Union of India ([1970] S.C.R. 222.) held that in a suit for setting aside the order of dismissal and for arrears of salary a claim for salary for the period prior to three years of the suit would be barred. The reason given is that when the order of dismissal is set aside the Government servant is deemed to be in service throughout the period during which the order of dismissal remains operative. Once an order of dismissal is declared bad it is held to be bad from the date of dismissal and salary would be due from the date when the dismissal order was bad.19. The same view has been taken by this Court in Sakal Dean Sahai Srivastava v. Union of India([1974] 2 S.C.R 485.). In that case the plaintiff filed a suit on 27 November, 1962 for a declaration that from 1 July, 1949 the date of illegal reversion up to 30 September, 1959 the date of his retirement he was a railway employee.20. Relying on the decision of this Court in Jai Chand Sawhneys case and Sakal Deeps case (supra) counsel for Madhya Pradesh contended that the plaintiff would not be entitled to more than three years salary. The present case is not one of setting aside an order of dismissal simpliciter. When the plaintiff filed a suit in 1949 he could not ask for arrears of salary. Pursuant to the decree dated 30 August, 1953 in his favour he was reinstated on 1 2 December, 1953. Three features are to be borne in mind in appreciating the plaintiffs case from the point of view of limitation. First the plaintiff became entitled to salary for the period 16 September, 1943 up t o the date of reinstatement on 12 December, 1953, only when pursuant to the decree dated 30 August, 1953 there was actual reinstatement of the plaintiff on 12 December, 1953. Second, the plaintiff was again suspended on 19 January, 1954 and was dismissed on 23 February 1956. The Madhya Pradesh Government on 5 March, 1954 decided that during the period of first suspension till his reinstatement on 12 December, 1953 he was not entitled to salary. Again on 29 January, 1956 the Madhya Pradesh Government decided under Fundamental Rule 54(iii ) that during the period of suspension from 16 September 1943 to 12 December 1953 and again from 19 January 1954 to 23 February 1956 he would not be entitled to any payment of allowances.On these facts two consequences arise in the present appeal. First, since the plaintiff was under suspension from 16 September, 1943 till 12 December, 1953 when he was rein- stated and again suspended from 19 January, 1954 till 23 February, 1956 when he was dismissed, his suit on 6 October, 1956 is within a period of three years from the date of his reinstatement on 12 December, 1953. Second, during the period of suspension he was not entitled to salary under Fundamental Rule 53. Further decision to that effect was taken by the Madhya Pradesh Government on 28 January, 1956 under Fundamental Rule 54. Therefore, the plaintiffs cause of action for salary for the period of suspension did not accrue until he was reinstated on 12 December, 1953. The plaintiffs salary accrued only when he was reinstated as a result of the decree setting aside the orders of suspension and of dismissal.The rulings of this Court in Jai Chand Sawhneys case (supra) and Sakal Deeps case (supra) do. not apply to the present appeal because there was no aspect of any suspension order remaining operative until the fact of reinstatement pursuant to the decree.21. The plaintiffs cause of action for arrears of salary is this. When the plaintiff was reinstated on 12 December, 1953 pursuant to the decree dated 30 August, 1953 the plaintiff became entitled to salary which was suspended during the period of suspension. The plaintiff was again suspended from 19 January, 1954 and he was dismissed from service on 23 February, 1956. Therefore, when the plaintiff filed the suit on 6 October, 1956 his entire claim for salary is founded first on his reinstatement on 12 December, 1953 pursuant to the decree and second on the order of suspension dated 19 January, 1954 and the order of dismissal on 23 February 1956 which the plaintiff challenged as illegal.The original order of suspension on 16 September, 1943 as welt as the original dismissal dated 7 November, 194 5 was declared to be illegal by the decree dated 30 August, 1953. Therefore, when the plaintiff was reinstated on 12 December, 1953 it is then that the plaintiffs claim for salary accrued due. This salary was again suspended from 19 January, 1954. Dismissal on 23 February, 1956 was at a time when the plaintiff was still under suspension. The order of suspension does not put an end to his service. Suspension merely suspends the claim to salary. During suspension there is suspension allowance. See Khem Chand v. Union of India(1) where this Court said that the real effect of the order of suspension is that though he continues to be a member of the service he is not permitted to work and is paid only subsistence allowance which is less than his salary. Under Fundamental Rule 52 the pay an d allowance of a Government servant who is dismissed or removed from service, cease from the date. of his dismissal or removal. Therefore, there would be no question of salary accruing or accruing due so long as orders of suspension and dismissal stand. The High Court was correct in the conclusion that the plaintiffs claim for salary accrued due only on the order of dismissal dated 23 February, 1956 being set aside.22.
### Response:
0
### Explanation:
Relying on the decision of this Court in Jai Chand Sawhneys case and Sakal Deeps case (supra) counsel for Madhya Pradesh contended that the plaintiff would not be entitled to more than three years salary. The present case is not one of setting aside an order of dismissal simpliciter. When the plaintiff filed a suit in 1949 he could not ask for arrears of salary. Pursuant to the decree dated 30 August, 1953 in his favour he was reinstated on 1 2 December, 1953. Three features are to be borne in mind in appreciating the plaintiffs case from the point of view of limitation. First the plaintiff became entitled to salary for the period 16 September, 1943 up t o the date of reinstatement on 12 December, 1953, only when pursuant to the decree dated 30 August, 1953 there was actual reinstatement of the plaintiff on 12 December, 1953. Second, the plaintiff was again suspended on 19 January, 1954 and was dismissed on 23 February 1956. The Madhya Pradesh Government on 5 March, 1954 decided that during the period of first suspension till his reinstatement on 12 December, 1953 he was not entitled to salary. Again on 29 January, 1956 the Madhya Pradesh Government decided under Fundamental Rule 54(iii ) that during the period of suspension from 16 September 1943 to 12 December 1953 and again from 19 January 1954 to 23 February 1956 he would not be entitled to any payment of allowances.On these facts two consequences arise in the present appeal. First, since the plaintiff was under suspension from 16 September, 1943 till 12 December, 1953 when he was rein- stated and again suspended from 19 January, 1954 till 23 February, 1956 when he was dismissed, his suit on 6 October, 1956 is within a period of three years from the date of his reinstatement on 12 December, 1953. Second, during the period of suspension he was not entitled to salary under Fundamental Rule 53. Further decision to that effect was taken by the Madhya Pradesh Government on 28 January, 1956 under Fundamental Rule 54. Therefore, the plaintiffs cause of action for salary for the period of suspension did not accrue until he was reinstated on 12 December, 1953. The plaintiffs salary accrued only when he was reinstated as a result of the decree setting aside the orders of suspension and ofrulings of this Court in Jai Chand Sawhneys case (supra) and Sakal Deeps case (supra) do. not apply to the present appeal because there was no aspect of any suspension order remaining operative until the fact of reinstatement pursuant to theplaintiffs cause of action for arrears of salary is this. When the plaintiff was reinstated on 12 December, 1953 pursuant to the decree dated 30 August, 1953 the plaintiff became entitled to salary which was suspended during the period of suspension. The plaintiff was again suspended from 19 January, 1954 and he was dismissed from service on 23 February, 1956. Therefore, when the plaintiff filed the suit on 6 October, 1956 his entire claim for salary is founded first on his reinstatement on 12 December, 1953 pursuant to the decree and second on the order of suspension dated 19 January, 1954 and the order of dismissal on 23 February 1956 which the plaintiff challenged as illegal.The original order of suspension on 16 September, 1943 as welt as the original dismissal dated 7 November, 194 5 was declared to be illegal by the decree dated 30 August, 1953. Therefore, when the plaintiff was reinstated on 12 December, 1953 it is then that the plaintiffs claim for salary accrued due. This salary was again suspended from 19 January, 1954. Dismissal on 23 February, 1956 was at a time when the plaintiff was still under suspension. The order of suspension does not put an end to his service. Suspension merely suspends the claim to salary. During suspension there is suspension allowance. See Khem Chand v. Union of India(1) where this Court said that the real effect of the order of suspension is that though he continues to be a member of the service he is not permitted to work and is paid only subsistence allowance which is less than his salary. Under Fundamental Rule 52 the pay an d allowance of a Government servant who is dismissed or removed from service, cease from the date. of his dismissal or removal. Therefore, there would be no question of salary accruing or accruing due so long as orders of suspension and dismissal stand. The High Court was correct in the conclusion that the plaintiffs claim for salary accrued due only on the order of dismissal dated 23 February, 1956 being set aside.
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Ramchandra Rambux Vs. Champabai And Others | we turn to the reverse of the sheet on which the document is inscribed, we find that as we go lower down, more and more words seem to be crammed in each line and the spacing between two lines tends to decrease, even though there appears to have been plenty of room for the sigature of Ramdhan to be scribed lower down on the paper. It would be legitimate to infer from this that the signature was already there before the will was scribed. This feature of the document as well as the quality of the paper used would suggest that a piece of paper bearing Ramdhans signature has been utilised by the scribe for engrossing what purports to be a will.14. Finally, there is the circumstance that the will is unnatural in the sense that though Ramdhan left property worth several lakhs, he made no provision for a residence for his wife but gave her only Rs. 40/- per month as her maintenance, and made only paltry bequests to his daughters. It is true that the daughters are married in affluent families, but in the absence of a male issue, a father is normlly expected to give at least substantial bequests to his daughters. Instead, the will gives almost the entire property to a distant relative, who, it may be noticed, was neither brought up by the testator, nor was a person who looked after the testator during his declining years. All this is said to have been due to the fact that Ramdhans relation with his wife had become strained. Indeed, the relationship between Ramdhan and his wife had become so bad that Ramdhan, according to the appellant, suspected that she was trying to poison him. Curiously enough, in spite of this, Ramdhan continued to live with Sitabai right till his death, and had made no arrangement for a person other than her to take charge of the cash and the gold and silver ornaments of the value of a couple of lakhs of rupees or so, in the event of his dying suddenly. There is nothing to suggest that Ramdhans food was cooked by any one other than Sitabai.15. To prove the appellants allegations that Ramdhan and Sitabai were not getting on well, the main evidence is that of the appellant himself, who is the person who has obviously taken an active part in procuring the execution of the document which he has set up as the will of Ramdhan. He must be held to have taken an active part, even though, according to him, he did not do so, because the will was written not only at Hyderabad where he lives and carries on his profession but also in his own house, and the persons who played one part or the other in this connection are either his friends or his neighbours. It is there circumstances which have to be borne in mind while evaluating the testimony of the witnesses bearing on the execution of the will. Further, it is necessary for the appellant to satisfy the conscience of the Court about the genuineness of this will by removing all suspicions which naturally flow from the various circumstances, which we have set out above. There is not an iota of evidence in this regard and we are not satisfied that the suspicion created by the circumstances referred to by us has been removed. Learned counsel has taken us through the evidence of the allpellant, the scribe and three attesting witnesses examined by him. All this evidence has been critically examined by the High Court but for reasons given by it in its judgment, not accepted by it. We find no reasons for viewing the evidence differently.16. We have already adverted to the fact that no particular reason has been even indicated by the appellant as to why Ramdhan thought of executing a will long before his death. If his idea in doing so was to make certain that his property does not fall in Sitabais hands after his death one would have expected to make some arrangement for keeping the movables out of her reach. He, however, made no such arrangement. Further, he would have also taken the precaution of registering the will, so that any challenge to its genuineness could not have been successfully made.17. Further, there is no unimpeachable evidence to show that the will was brought to light immediately after Ramdhans death, which would have been the case if it were a genuine will. On the other hand, there is one circumstance which suggests that the claim on the basis of Ramdhans will was not even thought of by the Appellant till long after Ramdhans death. The circumstance is the continuance of Sitabai in possession of the cash, gold and silver articles and other movables even subsequent to Ramdhans death. Of course, the appellant has given the explanation that he allowed her to remain in possession on his behalf, but his evidence is wholly incredible. Indeed, the appellant has said that he instituted the suit because he found Sitabai parting with portions of Ramdhans movables in favour of her daughters and strangers after the death of Ramdhan. At least, one thing will follow item this that according to him Sitabai was more interested in her daughters than in him. If, therefore, he had a genuine claim to Remdhans property, he would not have allowed Sitabai to remain in possession of Ramdhans movables. At least, he would have obtained from her a document containing the list and description of the movables and also an admission to the effect that she was entrusted with them by the appellant and that she had no right in them. Had she refused to execute such a document, one would have naturally expected the appellant to institute a suit for their possession immediately. There is no explanation for the absence of such a document, and thus this is also a circumstance which militates against the genuineness of the will. | 0[ds].In order to judge the credibility of the witnesses, the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses but it is open to it to look into the surrounding circumstances as well as the probabilities so that it may be able to form a correct idea of the trustworthiness of the witnesses. This issue cannot be determined by considering the evidence adduced in the Court separately from the surrounding circumstances which have also been brought out in the evidence, or which appear from the nature and contents of the document itself.We do not understand the observations of Lord Watson to mean that the testimony as to the execution of the document has to be considered independently of the attendant circumstances. All that he says is that where there is a large and consistent body of testimony tending to show the execution of a will by the testator, that evidence should not be lightly set aside on the theory of improbability.The High Court has analysed the entire evidence adduced by the propounder of the will to prove its due execution by Ramdhan, and along with that evidence, it has also considered certain attendant circumstances. One is the fact that the will is said to have been executed at Hyderabad, which is a place where the appellant resides and carries on his profession as a medical practitioner and not at Peepalgaon, where Ramdhan resided. The evidence adduced in the case shows that on the day prior to the one on which the will purports to have been executed, Ramdhan was at Ghanegaon till the afternoon. This place is 8 miles distant from Peepalgaon, and the nearest railway station is 20 miles distant from Peepalgaon. The will is said to have been executed at about noon, and though it is not impossible, it is highly improbable that Ramdhan could have been present at the place of execution by that time. The third thing is that the will was executed in the house of the appellant. One of the circumstances is that there was no particular reason why the will should have been executed at that time, because there is no suggestion that Ramdhan was not keeping good health. Then again the property is very considerable, and instead of employing the services of a trained lawyer to draw up the will, a layman like Venkat Bajaram, who has given his profession as "Jagirdari had been enlisted. The scribe as well as the attesting witnesses are not the personal friends of Ramdhan, though they say they knew him, but appear to be either the friends or neighbours of the appellant. Yet, the appellant wants the Court to believe that all these persons were collected by Ramdhan after his arrival at Hyderabad on the morning of May, 23. This, in itself, would be an improbable thing indeed, because Ramdhan would not have had enough time at his disposal for doing it. Again, there is no explanation why he should collect only the friends and acquaintances of the appellant rather than persons, who were his own friends.13. The High Court has further pointed out that the document is inscribed on a flimsy paper. It is in high flown Urdu, and is alleged to have been dictated by him in that language. No doubt, the evidence indicates that Ramdhan could speak in Urdu, but it also indicates that he cannot read or write in Urdu. It would, therefore, be legitimate to infer that the language which he could speak was the unlettered mans Urdu and notUrdu, which contains an admixture of Persian words. Indeed, such words have actually been used in this document. The signature of Ramdhan is itself in Modi script, which would not have been the case if he were well versed in Urdu. When we turn to the reverse of the sheet on which the document is inscribed, we find that as we go lower down, more and more words seem to be crammed in each line and the spacing between two lines tends to decrease, even though there appears to have been plenty of room for the sigature of Ramdhan to be scribed lower down on the paper. It would be legitimate to infer from this that the signature was already there before the will was scribed. This feature of the document as well as the quality of the paper used would suggest that a piece of paper bearing Ramdhans signature has been utilised by the scribe for engrossing what purports to be a will.14. Finally, there is the circumstance that the will is unnatural in the sense that though Ramdhan left property worth several lakhs, he made no provision for a residence for his wife but gave her only Rs. 40/per month as her maintenance, and made only paltry bequests to his daughters. It is true that the daughters are married in affluent families, but in the absence of a male issue, a father is normlly expected to give at least substantial bequests to his daughters. Instead, the will gives almost the entire property to a distant relative, who, it may be noticed, was neither brought up by the testator, nor was a person who looked after the testator during his declining years. All this is said to have been due to the fact that Ramdhans relation with his wife had become strained. Indeed, the relationship between Ramdhan and his wife had become so bad that Ramdhan, according to the appellant, suspected that she was trying to poison him. Curiously enough, in spite of this, Ramdhan continued to live with Sitabai right till his death, and had made no arrangement for a person other than her to take charge of the cash and the gold and silver ornaments of the value of a couple of lakhs of rupees or so, in the event of his dying suddenly. There is nothing to suggest that Ramdhans food was cooked by any one other than Sitabai.15. To prove the appellants allegations that Ramdhan and Sitabai were not getting on well, the main evidence is that of the appellant himself, who is the person who has obviously taken an active part in procuring the execution of the document which he has set up as the will of Ramdhan. He must be held to have taken an active part, even though, according to him, he did not do so, because the will was written not only at Hyderabad where he lives and carries on his profession but also in his own house, and the persons who played one part or the other in this connection are either his friends or his neighbours. It is there circumstances which have to be borne in mind while evaluating the testimony of the witnesses bearing on the execution of the will. Further, it is necessary for the appellant to satisfy the conscience of the Court about the genuineness of this will by removing all suspicions which naturally flow from the various circumstances, which we have set out above. There is not an iota of evidence in this regard and we are not satisfied that the suspicion created by the circumstances referred to by us has been removed. Learned counsel has taken us through the evidence of the allpellant, the scribe and three attesting witnesses examined by him. All this evidence has been critically examined by the High Court but for reasons given by it in its judgment, not accepted by it. We find no reasons for viewing the evidence differently.16. We have already adverted to the fact that no particular reason has been even indicated by the appellant as to why Ramdhan thought of executing a will long before his death. If his idea in doing so was to make certain that his property does not fall in Sitabais hands after his death one would have expected to make some arrangement for keeping the movables out of her reach. He, however, made no such arrangement. Further, he would have also taken the precaution of registering the will, so that any challenge to its genuineness could not have been successfully made.17. Further, there is no unimpeachable evidence to show that the will was brought to light immediately after Ramdhans death, which would have been the case if it were a genuine will. On the other hand, there is one circumstance which suggests that the claim on the basis of Ramdhans will was not even thought of by the Appellant till long after Ramdhans death. The circumstance is the continuance of Sitabai in possession of the cash, gold and silver articles and other movables even subsequent to Ramdhans death. Of course, the appellant has given the explanation that he allowed her to remain in possession on his behalf, but his evidence is wholly incredible. Indeed, the appellant has said that he instituted the suit because he found Sitabai parting with portions of Ramdhans movables in favour of her daughters and strangers after the death of Ramdhan. At least, one thing will follow item this that according to him Sitabai was more interested in her daughters than in him. If, therefore, he had a genuine claim to Remdhans property, he would not have allowed Sitabai to remain in possession of Ramdhans movables. At least, he would have obtained from her a document containing the list and description of the movables and also an admission to the effect that she was entrusted with them by the appellant and that she had no right in them. Had she refused to execute such a document, one would have naturally expected the appellant to institute a suit for their possession immediately. There is no explanation for the absence of such a document, and thus this is also a circumstance which militates against the genuineness of the will. | 0 | 4,637 | 1,781 | ### 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:
we turn to the reverse of the sheet on which the document is inscribed, we find that as we go lower down, more and more words seem to be crammed in each line and the spacing between two lines tends to decrease, even though there appears to have been plenty of room for the sigature of Ramdhan to be scribed lower down on the paper. It would be legitimate to infer from this that the signature was already there before the will was scribed. This feature of the document as well as the quality of the paper used would suggest that a piece of paper bearing Ramdhans signature has been utilised by the scribe for engrossing what purports to be a will.14. Finally, there is the circumstance that the will is unnatural in the sense that though Ramdhan left property worth several lakhs, he made no provision for a residence for his wife but gave her only Rs. 40/- per month as her maintenance, and made only paltry bequests to his daughters. It is true that the daughters are married in affluent families, but in the absence of a male issue, a father is normlly expected to give at least substantial bequests to his daughters. Instead, the will gives almost the entire property to a distant relative, who, it may be noticed, was neither brought up by the testator, nor was a person who looked after the testator during his declining years. All this is said to have been due to the fact that Ramdhans relation with his wife had become strained. Indeed, the relationship between Ramdhan and his wife had become so bad that Ramdhan, according to the appellant, suspected that she was trying to poison him. Curiously enough, in spite of this, Ramdhan continued to live with Sitabai right till his death, and had made no arrangement for a person other than her to take charge of the cash and the gold and silver ornaments of the value of a couple of lakhs of rupees or so, in the event of his dying suddenly. There is nothing to suggest that Ramdhans food was cooked by any one other than Sitabai.15. To prove the appellants allegations that Ramdhan and Sitabai were not getting on well, the main evidence is that of the appellant himself, who is the person who has obviously taken an active part in procuring the execution of the document which he has set up as the will of Ramdhan. He must be held to have taken an active part, even though, according to him, he did not do so, because the will was written not only at Hyderabad where he lives and carries on his profession but also in his own house, and the persons who played one part or the other in this connection are either his friends or his neighbours. It is there circumstances which have to be borne in mind while evaluating the testimony of the witnesses bearing on the execution of the will. Further, it is necessary for the appellant to satisfy the conscience of the Court about the genuineness of this will by removing all suspicions which naturally flow from the various circumstances, which we have set out above. There is not an iota of evidence in this regard and we are not satisfied that the suspicion created by the circumstances referred to by us has been removed. Learned counsel has taken us through the evidence of the allpellant, the scribe and three attesting witnesses examined by him. All this evidence has been critically examined by the High Court but for reasons given by it in its judgment, not accepted by it. We find no reasons for viewing the evidence differently.16. We have already adverted to the fact that no particular reason has been even indicated by the appellant as to why Ramdhan thought of executing a will long before his death. If his idea in doing so was to make certain that his property does not fall in Sitabais hands after his death one would have expected to make some arrangement for keeping the movables out of her reach. He, however, made no such arrangement. Further, he would have also taken the precaution of registering the will, so that any challenge to its genuineness could not have been successfully made.17. Further, there is no unimpeachable evidence to show that the will was brought to light immediately after Ramdhans death, which would have been the case if it were a genuine will. On the other hand, there is one circumstance which suggests that the claim on the basis of Ramdhans will was not even thought of by the Appellant till long after Ramdhans death. The circumstance is the continuance of Sitabai in possession of the cash, gold and silver articles and other movables even subsequent to Ramdhans death. Of course, the appellant has given the explanation that he allowed her to remain in possession on his behalf, but his evidence is wholly incredible. Indeed, the appellant has said that he instituted the suit because he found Sitabai parting with portions of Ramdhans movables in favour of her daughters and strangers after the death of Ramdhan. At least, one thing will follow item this that according to him Sitabai was more interested in her daughters than in him. If, therefore, he had a genuine claim to Remdhans property, he would not have allowed Sitabai to remain in possession of Ramdhans movables. At least, he would have obtained from her a document containing the list and description of the movables and also an admission to the effect that she was entrusted with them by the appellant and that she had no right in them. Had she refused to execute such a document, one would have naturally expected the appellant to institute a suit for their possession immediately. There is no explanation for the absence of such a document, and thus this is also a circumstance which militates against the genuineness of the will.
### Response:
0
### Explanation:
When we turn to the reverse of the sheet on which the document is inscribed, we find that as we go lower down, more and more words seem to be crammed in each line and the spacing between two lines tends to decrease, even though there appears to have been plenty of room for the sigature of Ramdhan to be scribed lower down on the paper. It would be legitimate to infer from this that the signature was already there before the will was scribed. This feature of the document as well as the quality of the paper used would suggest that a piece of paper bearing Ramdhans signature has been utilised by the scribe for engrossing what purports to be a will.14. Finally, there is the circumstance that the will is unnatural in the sense that though Ramdhan left property worth several lakhs, he made no provision for a residence for his wife but gave her only Rs. 40/per month as her maintenance, and made only paltry bequests to his daughters. It is true that the daughters are married in affluent families, but in the absence of a male issue, a father is normlly expected to give at least substantial bequests to his daughters. Instead, the will gives almost the entire property to a distant relative, who, it may be noticed, was neither brought up by the testator, nor was a person who looked after the testator during his declining years. All this is said to have been due to the fact that Ramdhans relation with his wife had become strained. Indeed, the relationship between Ramdhan and his wife had become so bad that Ramdhan, according to the appellant, suspected that she was trying to poison him. Curiously enough, in spite of this, Ramdhan continued to live with Sitabai right till his death, and had made no arrangement for a person other than her to take charge of the cash and the gold and silver ornaments of the value of a couple of lakhs of rupees or so, in the event of his dying suddenly. There is nothing to suggest that Ramdhans food was cooked by any one other than Sitabai.15. To prove the appellants allegations that Ramdhan and Sitabai were not getting on well, the main evidence is that of the appellant himself, who is the person who has obviously taken an active part in procuring the execution of the document which he has set up as the will of Ramdhan. He must be held to have taken an active part, even though, according to him, he did not do so, because the will was written not only at Hyderabad where he lives and carries on his profession but also in his own house, and the persons who played one part or the other in this connection are either his friends or his neighbours. It is there circumstances which have to be borne in mind while evaluating the testimony of the witnesses bearing on the execution of the will. Further, it is necessary for the appellant to satisfy the conscience of the Court about the genuineness of this will by removing all suspicions which naturally flow from the various circumstances, which we have set out above. There is not an iota of evidence in this regard and we are not satisfied that the suspicion created by the circumstances referred to by us has been removed. Learned counsel has taken us through the evidence of the allpellant, the scribe and three attesting witnesses examined by him. All this evidence has been critically examined by the High Court but for reasons given by it in its judgment, not accepted by it. We find no reasons for viewing the evidence differently.16. We have already adverted to the fact that no particular reason has been even indicated by the appellant as to why Ramdhan thought of executing a will long before his death. If his idea in doing so was to make certain that his property does not fall in Sitabais hands after his death one would have expected to make some arrangement for keeping the movables out of her reach. He, however, made no such arrangement. Further, he would have also taken the precaution of registering the will, so that any challenge to its genuineness could not have been successfully made.17. Further, there is no unimpeachable evidence to show that the will was brought to light immediately after Ramdhans death, which would have been the case if it were a genuine will. On the other hand, there is one circumstance which suggests that the claim on the basis of Ramdhans will was not even thought of by the Appellant till long after Ramdhans death. The circumstance is the continuance of Sitabai in possession of the cash, gold and silver articles and other movables even subsequent to Ramdhans death. Of course, the appellant has given the explanation that he allowed her to remain in possession on his behalf, but his evidence is wholly incredible. Indeed, the appellant has said that he instituted the suit because he found Sitabai parting with portions of Ramdhans movables in favour of her daughters and strangers after the death of Ramdhan. At least, one thing will follow item this that according to him Sitabai was more interested in her daughters than in him. If, therefore, he had a genuine claim to Remdhans property, he would not have allowed Sitabai to remain in possession of Ramdhans movables. At least, he would have obtained from her a document containing the list and description of the movables and also an admission to the effect that she was entrusted with them by the appellant and that she had no right in them. Had she refused to execute such a document, one would have naturally expected the appellant to institute a suit for their possession immediately. There is no explanation for the absence of such a document, and thus this is also a circumstance which militates against the genuineness of the will.
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M/S RADHA EXPORTS (INDIA) PRIVATE LIMITED Vs. K.P JAYARAM & ANR. | were transferred to the NCLT and also the pleadings in CP/77/ (IB)/CB/2018 and WCP No. 770/IB/CB/C-II/2018 filed before the Chennai Bench of NCLT. Any suit filed by the Respondents against Mr. Krishnan or against the company will be decided on its own merits without being swayed by the observations made in this judgment. 42. Even otherwise, the application under Section 7 of the IBC was not maintainable. As rightly held by the NCLT there was no financial debt in existence. In this context, it would be pertinent to refer to the following provisions of the IBC:- 3. Definitions.- In this Code, unless the context otherwise requires,— ……. (8) corporate debtor means a corporate person who owes a debt to any person; ……. (10) creditor means any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree-holder; (11) debt means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt; (12) default means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not paid by the debtor or the corporate debtor, as the case may be. xxx xxx xxx 5. Definitions.- In this Part, unless the context otherwise requires,- ……... (7) financial creditor means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to; (8) financial debt means a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money and includes— (a) money borrowed against the payment of interest; (b) any amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; (e) receivables sold or discounted other than any receivables sold on nonrecourse basis; (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing; (g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause; xxx xxx xxx 7. Initiation of corporate insolvency resolution process by financial creditor.- (1) A financial creditor either by itself or jointly with other financial creditors, or any other person on behalf of the financial creditor, as may be notified by the Central Govt. may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. xxx xxx xxx 8. Insolvency resolution by operational creditor.- (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. (2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor— (a) existence of a dispute, if any, on record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute; (b) the payment of unpaid operational debt— (i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation.—For the purposes of this section, a demand notice means a notice served by an operational creditor to the corporate debtor demanding payment of the operational debt in respect of which the default has occurred. 43. The definition of financial debt in Section 5(8) makes it clear that financial debt means a debt along with interest, if any, disbursed against the consideration for time value of money and would include money raised or borrowed against the payment of interest; amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent; amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; receivables sold or discounted other than any receivables sold on non-recourse basis or any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing. Explanation to Section 5(8) which relates to real estate projects is of no relevance in the facts and circumstances of this case. The payment received for shares, duly issued to a third party at the request of the payee as evident from official records, cannot be a debt, not to speak of financial debt. Shares of a company are transferable subject to restrictions, if any, in its Articles of Association and attract dividend when the company makes profits. | 1[ds]16. Allegations of forgery and fraud are not decided in proceedings under Sections 433 and 434 of the Companies Act 1956 for winding up of a company. Such disputes necessarily have to be adjudicated in a regular suit, on the basis of evidence, including forensic examination reports.30. It appears that the Appellate Authority was not inclined to accept the submission of the Appellant Company, that the entire amount had been paid, for two purported reasons. The first reason was that the Correlation Statement showed payments of certain amounts amounting to Rs.53,05,000/- in favour of Customs, Chennai and payments amounting to Rs.1,75,000/- in favour of one Mr. Kulasekaran. The Respondents, as Financial Creditors had disputed that these payments were towards the dues of the Financial Creditors. The second reason was that, if the total amount had been paid, there was no reason for the Appellant Company to take the plea that the amount was not payable, the same being barred by limitation.31. It is well settled in law that alternative defences are permissible to contest a claim. It was thus open to the Appellant Company, to refute the claim of the Respondents by taking the plea of limitation and also to contend that no amount was in fact due and payable by the Appellant Company to the Respondents.33. The proposition of law which emerges from Innoventive Industries Ltd. (supra) is that the Insolvency Resolution Process begins when a default takes place. In other words, once a debt or even part thereof becomes due and payable, the resolution process begins. Section 3(11) defines debt as a liability or obligation in respect of a claim and the claim means a right to payment even if it is disputed. The Code gets triggered the moment default is of Rs.1,00,000/- or more. Once the Adjudicating Authority is satisfied that a default has occurred, the application must be admitted, unless it is otherwise incomplete and not in accordance with the rules. The judgment is however, not an authority for the proposition that a petition under Section 7 of the IBC has to be admitted, even if the claim is ex facie barred by limitation34. On the other hand, in B.K. Educational Services Pvt. Ltd. v. Parag Gupta and Associates (2019) 11 SCC 633 , this Court held:-42. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. The right to sue, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application.35. The judgment in B.K. Educational Services Pvt. Ltd. (supra) was referred to and relied upon by the Court in Vashdeo R. Bhojwani v. Abhyudaya Co-operative Bank Ltd. (2019) 9 SCC 158 . 36. It was for the applicant invoking the Corporate Insolvency Resolution Process, to prima facie show the existence in his favour, of a legally recoverable debt. In other words, the respondent had to show that the debt is not barred by limitation, which they failed to do.37. Under clauses (19) to (21) of Part II of the Schedule of the Limitation Act 1963, the period of limitation for initiation of a suit for recovery of money lent, is three years from the date on which the loan is paid. The last loan amount is said to have been advanced in 2004-2005. In the winding up petition, there is not a whisper of any agreed date by which the alleged loan was to be repaid to the Respondents. In the instant case, apparently the debt was barred by limitation even in the year 2012, when winding up proceedings were initiated in the Madras High Court.38. The NCLT rightly refused to admit the application under Section 7 of the IBC, holding the same to be barred by limitation. The Appellate Tribunal has erred in law in reversing the judgment and order of the earlier Adjudicating Authority. The Adjudicating Authority rightly rejected the application as barred by limitation. The Appellate Authority patently erred in law in reversing the decision of the adjudicating authority and admitting the application.39. As recorded in the said order dated 19 th December, 2018 passed by the NCLT Chennai, the Respondent Nos. 1 and 2 jointly addressed the letter dated 11 th January, 2011 to the Income T ax Department confirming that the Respondent No.1 had requested the Appellant Company to transfer a sum of Rs.90 lakhs to his wife, the Respondent No.2 for allotment of shares in the Appellant Company and further acknowledged that the amount outstanding from the erstwhile firm M/s. Radha Exports to the Respondent was Rs.1,39,60,000/- as on 31 st March, 2004. The said letter has been extracted in full in Paragraph (9) of the judgment and order dated 19 th December, 2018 of NCLT.40. There are, as observed above cogent records including letters signed by the Respondent Nos. 1 and 2 which evince that on 6 th October, 2007, Respondent No.2 resigned from the Board of the Appellant Company and at that time the Respondent No.2 requested the Appellant Company to treat the share application money of Rs.90,00,000/- as share application money of Mr. M. Krishnan and to issue shares for aforesaid value to Mr. M. Krishnan. The amount was to be treated as a personal loan from the Respondent No.2 to Mr. M. Krishnan. A personal Loan to a Promoter or a Director of a company cannot trigger the Corporate Resolution Process under the IBC. Disputes as to whether the signatures of the Respondents are forged or whether records have been fabricated can be adjudicated upon evidence including forensic evidence in a regular suit and not in proceedings under Section 7 of the IBC.41. It is, however, made clear that the observations made above, with regard to limitation are based on the pleadings and annexures in the winding up proceedings under Sections 433/434 of the Companies Act, 1956 filed in Madras High Court, which were transferred to the NCLT and also the pleadings in CP/77/ (IB)/CB/2018 and WCP No. 770/IB/CB/C-II/2018 filed before the Chennai Bench of NCLT. Any suit filed by the Respondents against Mr. Krishnan or against the company will be decided on its own merits without being swayed by the observations made in this judgment.42. Even otherwise, the application under Section 7 of the IBC was not maintainable. As rightly held by the NCLT there was no financial debt in existence.The payment received for shares, duly issued to a third party at the request of the payee as evident from official records, cannot be a debt, not to speak of financial debt. Shares of a company are transferable subject to restrictions, if any, in its Articles of Association and attract dividend when the company makes profits.43. The definition ofSection 5(8) makes it clear that financial debtmeans a debt along with interest, if any, disbursed against the consideration for time value of money and would include money raised or borrowed against the payment of interest; amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent; amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; receivables sold or discounted other than any receivables sold on non-recourse basis or any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing. Explanation to Section 5(8) which relates to real estate projects is of no relevance in the facts and circumstances of this case. | 1 | 6,551 | 1,498 | ### 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:
were transferred to the NCLT and also the pleadings in CP/77/ (IB)/CB/2018 and WCP No. 770/IB/CB/C-II/2018 filed before the Chennai Bench of NCLT. Any suit filed by the Respondents against Mr. Krishnan or against the company will be decided on its own merits without being swayed by the observations made in this judgment. 42. Even otherwise, the application under Section 7 of the IBC was not maintainable. As rightly held by the NCLT there was no financial debt in existence. In this context, it would be pertinent to refer to the following provisions of the IBC:- 3. Definitions.- In this Code, unless the context otherwise requires,— ……. (8) corporate debtor means a corporate person who owes a debt to any person; ……. (10) creditor means any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree-holder; (11) debt means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt; (12) default means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not paid by the debtor or the corporate debtor, as the case may be. xxx xxx xxx 5. Definitions.- In this Part, unless the context otherwise requires,- ……... (7) financial creditor means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to; (8) financial debt means a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money and includes— (a) money borrowed against the payment of interest; (b) any amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; (e) receivables sold or discounted other than any receivables sold on nonrecourse basis; (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing; (g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause; xxx xxx xxx 7. Initiation of corporate insolvency resolution process by financial creditor.- (1) A financial creditor either by itself or jointly with other financial creditors, or any other person on behalf of the financial creditor, as may be notified by the Central Govt. may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. xxx xxx xxx 8. Insolvency resolution by operational creditor.- (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. (2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor— (a) existence of a dispute, if any, on record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute; (b) the payment of unpaid operational debt— (i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation.—For the purposes of this section, a demand notice means a notice served by an operational creditor to the corporate debtor demanding payment of the operational debt in respect of which the default has occurred. 43. The definition of financial debt in Section 5(8) makes it clear that financial debt means a debt along with interest, if any, disbursed against the consideration for time value of money and would include money raised or borrowed against the payment of interest; amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent; amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; receivables sold or discounted other than any receivables sold on non-recourse basis or any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing. Explanation to Section 5(8) which relates to real estate projects is of no relevance in the facts and circumstances of this case. The payment received for shares, duly issued to a third party at the request of the payee as evident from official records, cannot be a debt, not to speak of financial debt. Shares of a company are transferable subject to restrictions, if any, in its Articles of Association and attract dividend when the company makes profits.
### Response:
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even if the claim is ex facie barred by limitation34. On the other hand, in B.K. Educational Services Pvt. Ltd. v. Parag Gupta and Associates (2019) 11 SCC 633 , this Court held:-42. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. The right to sue, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application.35. The judgment in B.K. Educational Services Pvt. Ltd. (supra) was referred to and relied upon by the Court in Vashdeo R. Bhojwani v. Abhyudaya Co-operative Bank Ltd. (2019) 9 SCC 158 . 36. It was for the applicant invoking the Corporate Insolvency Resolution Process, to prima facie show the existence in his favour, of a legally recoverable debt. In other words, the respondent had to show that the debt is not barred by limitation, which they failed to do.37. Under clauses (19) to (21) of Part II of the Schedule of the Limitation Act 1963, the period of limitation for initiation of a suit for recovery of money lent, is three years from the date on which the loan is paid. The last loan amount is said to have been advanced in 2004-2005. In the winding up petition, there is not a whisper of any agreed date by which the alleged loan was to be repaid to the Respondents. In the instant case, apparently the debt was barred by limitation even in the year 2012, when winding up proceedings were initiated in the Madras High Court.38. The NCLT rightly refused to admit the application under Section 7 of the IBC, holding the same to be barred by limitation. The Appellate Tribunal has erred in law in reversing the judgment and order of the earlier Adjudicating Authority. The Adjudicating Authority rightly rejected the application as barred by limitation. The Appellate Authority patently erred in law in reversing the decision of the adjudicating authority and admitting the application.39. As recorded in the said order dated 19 th December, 2018 passed by the NCLT Chennai, the Respondent Nos. 1 and 2 jointly addressed the letter dated 11 th January, 2011 to the Income T ax Department confirming that the Respondent No.1 had requested the Appellant Company to transfer a sum of Rs.90 lakhs to his wife, the Respondent No.2 for allotment of shares in the Appellant Company and further acknowledged that the amount outstanding from the erstwhile firm M/s. Radha Exports to the Respondent was Rs.1,39,60,000/- as on 31 st March, 2004. The said letter has been extracted in full in Paragraph (9) of the judgment and order dated 19 th December, 2018 of NCLT.40. There are, as observed above cogent records including letters signed by the Respondent Nos. 1 and 2 which evince that on 6 th October, 2007, Respondent No.2 resigned from the Board of the Appellant Company and at that time the Respondent No.2 requested the Appellant Company to treat the share application money of Rs.90,00,000/- as share application money of Mr. M. Krishnan and to issue shares for aforesaid value to Mr. M. Krishnan. The amount was to be treated as a personal loan from the Respondent No.2 to Mr. M. Krishnan. A personal Loan to a Promoter or a Director of a company cannot trigger the Corporate Resolution Process under the IBC. Disputes as to whether the signatures of the Respondents are forged or whether records have been fabricated can be adjudicated upon evidence including forensic evidence in a regular suit and not in proceedings under Section 7 of the IBC.41. It is, however, made clear that the observations made above, with regard to limitation are based on the pleadings and annexures in the winding up proceedings under Sections 433/434 of the Companies Act, 1956 filed in Madras High Court, which were transferred to the NCLT and also the pleadings in CP/77/ (IB)/CB/2018 and WCP No. 770/IB/CB/C-II/2018 filed before the Chennai Bench of NCLT. Any suit filed by the Respondents against Mr. Krishnan or against the company will be decided on its own merits without being swayed by the observations made in this judgment.42. Even otherwise, the application under Section 7 of the IBC was not maintainable. As rightly held by the NCLT there was no financial debt in existence.The payment received for shares, duly issued to a third party at the request of the payee as evident from official records, cannot be a debt, not to speak of financial debt. Shares of a company are transferable subject to restrictions, if any, in its Articles of Association and attract dividend when the company makes profits.43. The definition ofSection 5(8) makes it clear that financial debtmeans a debt along with interest, if any, disbursed against the consideration for time value of money and would include money raised or borrowed against the payment of interest; amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent; amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; receivables sold or discounted other than any receivables sold on non-recourse basis or any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing. Explanation to Section 5(8) which relates to real estate projects is of no relevance in the facts and circumstances of this case.
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Commissioner Of Income-Tax, Gujarat Vs. Ashokbhai Chimanbhai | to be taken and the profit or loss was to be ascertained on the Divali day of each samvat year. Arvind died on August 31, 1950, and his share in the profits as ascertained on August 31, 1950 was sought to be added under S. 16 (3) of the Income-tax Act, 1922, to the income of his father on the footing that the amount constituted income of a minor child of the assessee which arose from the admission of that minor child to the benefits of the partnership. The Court held that as Arvind had agreed to remain a partner after attaining majority and under the terms of the partnership profit or loss was to be ascertained only on the Divali day of each year it was impossible to predicate whether the partnership had made any profit or loss, on any date prior to the date of Divali in any year and as the right to receive a share of the profits arose on the death of Arvind the share of profit could not be treated as income which arose directly or indirectly to Arvind during his minority so is to make it liable to be included under S. 16 (3) in the assessment of the father. Chagla, C. J. in delivering the judgment of the Court referred to E. D. Sassoon Co. Ltd.s case, 1954-26 ITR 27 : (AIR 1954 SC 470 ), and observed that though income may accrue or arise to an assessee before he actually receives it, income cannot accrue or arise to him until he acquires a right to receive its and unless and until there is created in favour of the assessee a debt due by somebody, it cannot be said that he has acquired a right to receive the income. In so holding, the learned Chief Justice quoted a passage from the judgment of Bhagati, J., in E. D. Sassoon Co. Ltd.s case, 1954-26 ITR 27 (AIR 1954 SC 470 ), to the elect that"Income may accrue to an assessee,without the actual receipt of the same. If the asseassee acquires a right to receive the income the income can be said to have accrued to him thought it may be received later on its being ascertained. The basic conception is that he must have acquired a right to receive the income. There must be a debt owed to him by somebody,. There must be as is otherwise expressed debitumi in praesenti solvendum in future.... unless and until there is created in favour of the assessee a debt due by somebody it cannot be said that he has acquired a right to receive the income or that income has accrued to him?12. It was urged by counsel for the Commissioner that between the partners collectively and an individual partner there can be no relation of a debtor and creditor and, therefore, the principle enunciated by this Court, in E. D. Sassoon Co. Ltd.s,. case, 1954-26 ITR 27 ; (AIR 1954 SC 470 ), has no application to cases where a partner receives his share of the profits of the firm on making up the account of the partnership. But the principle of E. D. Sassoon Co. Ltd.s case, .1954-18 ITR 27 (AIR 1954 SC 470 ), is that income accrues or arises when a right thereto comes into existence and not before. If that be the correct ratio, and we think it is, the argument that a partnership is nothing but a compendious name for partners involving the corollary that a partner cannot be a creditor of the partnership will have no practical impact.13. In Bhogilals case, 1955-28 ITR 919 ; (AIR 1956 Bom 411 ), the position was substantially the same as in the present case. On Arvind attaining the age of majority and electing to continue as a partner he became entitled to all the rights and obligations of a partner since he was admitted to the benefits of the partnership and also to receive his share of profits computed at the end of the year as regulated by the partnership deed. On the death of Arvind the partnership stdod dissolved and accounts had to be made up on August 31, 1950. But the earliest date on which Arvinds estate became entitled to a share in the profits was after he attained the age of majority; it was, therefore, not income which arose directly or indirectly in favour of a minor child so as to attract the application of S. 16 (3) of the Incometax Act. It must be noticed that in Bhogilals case, 1955-28 ITR 919 : (AIR 1956 Bom 411 ), income was earned by the firm in Samvat year 2006 and Arvind attained the age of majority before the end of that year, The Revenue authorities sought to apportion the share of Arvind in the income, and sought to render the father liable for that part of the income which it was claimed was properly attributable to the part of the year during which Arvind was a minor, but that claim was rejected and the entire share of Arvind in the profits was held not taxable under S. 16 (8) as part of the income of his father.14. In the present case at the date when Ashokbhai acquired the right to receive a share of profits, there was no subsisting joint family and his share of the profits was not received by him on behalf of the assessee.15. There was in this case no assignment of the profits which had already accrued to the assessee, Profits accrued to Ashokbhai and on the date on which they accrued the assessee had because of the deed of partition no interest in the profits. The Revenue authorities could not claim that profits which under the instrument of partition did not accrue or arise to Ashokbhai as representing the Hindu undivided family must for purposes of taxation be so deemed. The High Court was, therefore, right in answering the question in the negative.16. | 0[ds]In Bhogilals case, 1955-28 ITR 919 ; (AIR 1956 Bom 411 ), the position was substantially the same as in the present case. On Arvind attaining the age of majority and electing to continue as a partner he became entitled to all the rights and obligations of a partner since he was admitted to the benefits of the partnership and also to receive his share of profits computed at the end of the year as regulated by the partnership deed. On the death of Arvind the partnership stdod dissolved and accounts had to be made up on August 31, 1950. But the earliest date on which Arvinds estate became entitled to a share in the profits was after he attained the age of majority; it was, therefore, not income which arose directly or indirectly in favour of a minor child so as to attract the application of S. 16 (3) of the Incometax Act. It must be noticed that in Bhogilals case, 1955-28 ITR 919 : (AIR 1956 Bom 411 ), income was earned by the firm in Samvat year 2006 and Arvind attained the age of majority before the end of that year, The Revenue authorities sought to apportion the share of Arvind in the income, and sought to render the father liable for that part of the income which it was claimed was properly attributable to the part of the year during which Arvind was a minor, but that claim was rejected and the entire share of Arvind in the profits was held not taxable under S. 16 (8) as part of the income of his father.14. In the present case at the date when Ashokbhai acquired the right to receive a share of profits, there was no subsisting joint family and his share of the profits was not received by him on behalf of the assessee.15. There was in this case no assignment of the profits which had already accrued to the assessee, Profits accrued to Ashokbhai and on the date on which they accrued the assessee had because of the deed of partition no interest in the profits. The Revenue authorities could not claim that profits which under the instrument of partition did not accrue or arise to Ashokbhai as representing the Hindu undivided family must for purposes of taxation be so deemed. The High Court was, therefore, right in answering the question in the negative.x Act, income is taxable when it accrues, arises or is received, or when it is by, fiction deemed to accrue, arise or is deemed to be received.Receipt is not the only test of chargeability to tax; if income accrues or arises it may become liable to tax. For the purpose of this case it is unnecessary to dilate upon the distinction between income "accruing and "arising". But there is no doubt that the two words are used in contradistinguish the word "receive".Income is said to be received when it reaches the assessee; when the right to receive the income becomes vested in the assessee, it is said to accrue orthe gross receipts of a business day after day or from transaction to transaction lie embedded or dormant profit or loss; on such dormant profit or loss undoubtedly taxable profits; if any, of the business will be computed. But dormant profits cannot be equated with profits charged to tax under Ss. 3 and 4 of theAct. The concept of accrual of profits of a business involves the determination by the method of accounting at the end of the accounting year or any shorter period determined by law. If profits accrue to the assessee directly from the business the question whether they accrue de die in diem or at the close of the year of account has at best an academic significance, but when upon ascertainment of profits the right of a person to a share therein is determined, the question assumes practical importance, for it is only on the right to receive profits or income, profits accrue to that person. If there is no right, no profits will be deemed to have accrued. This principle was applied by this Court in E. D. Sassoon and Co. Ltd. v. The Commissioner ofITR 27: (AIR 1954 SC 470 ). The material facts bearing on that principle were these: E. D. Sassoon and Co. Ltd., calledthe managing agents of a Company which may be called the United Mills and were entitled to receive a percentage of annual net profits of the Company as their remuneration. On December 1, 1943 Sassoons assigned to Messrs Agarwal and Co. their office as managing agents and all their rights and benefits under the managing agency agreement. Accounts of the managing agency commission payable to the managing agents for the calendar year 1943 were made up in 1944 and commission for the whole year was paid to Messrs Agarwal and Co. thereafter. In the course of assessment proceeding of Sassoons it was debated whether in respect of commission earned by the managing agency, tax was payable on the entirety of the commission by Messrs Agarwal and Co. or by sassoons or it was liable to be apportioned between Messrs Agarwal and Co. and Sassoons. This Court held (Jagannadhadas, J., dissenting) that Messrs Agarwal and Co, alone were liable to pay tax on the whole of the remuneration received under the contract of service between the United Mills, because the managing agency was entire and indivisible, and the remuneration or commission fell due to the managing agents, only on completion of a definite period of service and at stated periods it being a condition of recovery of wages or salary that the service or duty should be completely performed, Remuneration as managing agents constituted according to the Court "a debt only at the end of each such period of service and no remuneration or commission was payable to the managing agents for broken periods After referring to the observations of Fletcher Moulton, L. J., in Spanish Prospecting Co. Ltds. ; case.Ch 92 (already set out), Bhagwati, J., observed that "it would be absurd to suggest that the profits of the company could accrue from day to day or even from month to month". The working of the company from day to day could certainly not indicate any profit or loss, even the working of the company from month to month could not be taken as a reliable guide for this purpose. If the profit or loss has to be ascertained by a comparison of the assets at two stated points, the most businesslike way would be to so do at stated intervals of one year and that would be a reasonable period to be adopted for the purpose. In the case of large business concern the working of the company during a particular month may show profits and the working in another month may show loss. The business during the earlier part of the year may show profit or loss and in the later part of the year may show loss or profit which would go tothe profit or loss as the case may be in the earlier part of the year. It would, therefore, be reasonable determine the profit or loss as the case may be at the end of every year so that on such calculation of net profits the managing agents may be paid their remuneration or commission at the percentage stipulated in the managing agency agreement and the shareholders also be paid dividends out of the net profits of theit cannot be inferred therefrom that whenever the partnership receives gross receipts in respect of its business transaction in which is embedded some profit or loss of the partnership that profit or loss results immediately, on the gross receipts reaching the partnership to the individual partners in their aliquot shares. Normally, for profits to accrue or arise, there should be a right either under the statute or under contract between theand others which entitles the former to make a demand for thosethat be the correct ratio, and we think it is, the argument that a partnership is nothing but a compendious name for partners involving the corollary that a partner cannot be a creditor of the partnership will have no practical impact. | 0 | 5,057 | 1,488 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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to be taken and the profit or loss was to be ascertained on the Divali day of each samvat year. Arvind died on August 31, 1950, and his share in the profits as ascertained on August 31, 1950 was sought to be added under S. 16 (3) of the Income-tax Act, 1922, to the income of his father on the footing that the amount constituted income of a minor child of the assessee which arose from the admission of that minor child to the benefits of the partnership. The Court held that as Arvind had agreed to remain a partner after attaining majority and under the terms of the partnership profit or loss was to be ascertained only on the Divali day of each year it was impossible to predicate whether the partnership had made any profit or loss, on any date prior to the date of Divali in any year and as the right to receive a share of the profits arose on the death of Arvind the share of profit could not be treated as income which arose directly or indirectly to Arvind during his minority so is to make it liable to be included under S. 16 (3) in the assessment of the father. Chagla, C. J. in delivering the judgment of the Court referred to E. D. Sassoon Co. Ltd.s case, 1954-26 ITR 27 : (AIR 1954 SC 470 ), and observed that though income may accrue or arise to an assessee before he actually receives it, income cannot accrue or arise to him until he acquires a right to receive its and unless and until there is created in favour of the assessee a debt due by somebody, it cannot be said that he has acquired a right to receive the income. In so holding, the learned Chief Justice quoted a passage from the judgment of Bhagati, J., in E. D. Sassoon Co. Ltd.s case, 1954-26 ITR 27 (AIR 1954 SC 470 ), to the elect that"Income may accrue to an assessee,without the actual receipt of the same. If the asseassee acquires a right to receive the income the income can be said to have accrued to him thought it may be received later on its being ascertained. The basic conception is that he must have acquired a right to receive the income. There must be a debt owed to him by somebody,. There must be as is otherwise expressed debitumi in praesenti solvendum in future.... unless and until there is created in favour of the assessee a debt due by somebody it cannot be said that he has acquired a right to receive the income or that income has accrued to him?12. It was urged by counsel for the Commissioner that between the partners collectively and an individual partner there can be no relation of a debtor and creditor and, therefore, the principle enunciated by this Court, in E. D. Sassoon Co. Ltd.s,. case, 1954-26 ITR 27 ; (AIR 1954 SC 470 ), has no application to cases where a partner receives his share of the profits of the firm on making up the account of the partnership. But the principle of E. D. Sassoon Co. Ltd.s case, .1954-18 ITR 27 (AIR 1954 SC 470 ), is that income accrues or arises when a right thereto comes into existence and not before. If that be the correct ratio, and we think it is, the argument that a partnership is nothing but a compendious name for partners involving the corollary that a partner cannot be a creditor of the partnership will have no practical impact.13. In Bhogilals case, 1955-28 ITR 919 ; (AIR 1956 Bom 411 ), the position was substantially the same as in the present case. On Arvind attaining the age of majority and electing to continue as a partner he became entitled to all the rights and obligations of a partner since he was admitted to the benefits of the partnership and also to receive his share of profits computed at the end of the year as regulated by the partnership deed. On the death of Arvind the partnership stdod dissolved and accounts had to be made up on August 31, 1950. But the earliest date on which Arvinds estate became entitled to a share in the profits was after he attained the age of majority; it was, therefore, not income which arose directly or indirectly in favour of a minor child so as to attract the application of S. 16 (3) of the Incometax Act. It must be noticed that in Bhogilals case, 1955-28 ITR 919 : (AIR 1956 Bom 411 ), income was earned by the firm in Samvat year 2006 and Arvind attained the age of majority before the end of that year, The Revenue authorities sought to apportion the share of Arvind in the income, and sought to render the father liable for that part of the income which it was claimed was properly attributable to the part of the year during which Arvind was a minor, but that claim was rejected and the entire share of Arvind in the profits was held not taxable under S. 16 (8) as part of the income of his father.14. In the present case at the date when Ashokbhai acquired the right to receive a share of profits, there was no subsisting joint family and his share of the profits was not received by him on behalf of the assessee.15. There was in this case no assignment of the profits which had already accrued to the assessee, Profits accrued to Ashokbhai and on the date on which they accrued the assessee had because of the deed of partition no interest in the profits. The Revenue authorities could not claim that profits which under the instrument of partition did not accrue or arise to Ashokbhai as representing the Hindu undivided family must for purposes of taxation be so deemed. The High Court was, therefore, right in answering the question in the negative.16.
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Hindu undivided family must for purposes of taxation be so deemed. The High Court was, therefore, right in answering the question in the negative.x Act, income is taxable when it accrues, arises or is received, or when it is by, fiction deemed to accrue, arise or is deemed to be received.Receipt is not the only test of chargeability to tax; if income accrues or arises it may become liable to tax. For the purpose of this case it is unnecessary to dilate upon the distinction between income "accruing and "arising". But there is no doubt that the two words are used in contradistinguish the word "receive".Income is said to be received when it reaches the assessee; when the right to receive the income becomes vested in the assessee, it is said to accrue orthe gross receipts of a business day after day or from transaction to transaction lie embedded or dormant profit or loss; on such dormant profit or loss undoubtedly taxable profits; if any, of the business will be computed. But dormant profits cannot be equated with profits charged to tax under Ss. 3 and 4 of theAct. The concept of accrual of profits of a business involves the determination by the method of accounting at the end of the accounting year or any shorter period determined by law. If profits accrue to the assessee directly from the business the question whether they accrue de die in diem or at the close of the year of account has at best an academic significance, but when upon ascertainment of profits the right of a person to a share therein is determined, the question assumes practical importance, for it is only on the right to receive profits or income, profits accrue to that person. If there is no right, no profits will be deemed to have accrued. This principle was applied by this Court in E. D. Sassoon and Co. Ltd. v. The Commissioner ofITR 27: (AIR 1954 SC 470 ). The material facts bearing on that principle were these: E. D. Sassoon and Co. Ltd., calledthe managing agents of a Company which may be called the United Mills and were entitled to receive a percentage of annual net profits of the Company as their remuneration. On December 1, 1943 Sassoons assigned to Messrs Agarwal and Co. their office as managing agents and all their rights and benefits under the managing agency agreement. Accounts of the managing agency commission payable to the managing agents for the calendar year 1943 were made up in 1944 and commission for the whole year was paid to Messrs Agarwal and Co. thereafter. In the course of assessment proceeding of Sassoons it was debated whether in respect of commission earned by the managing agency, tax was payable on the entirety of the commission by Messrs Agarwal and Co. or by sassoons or it was liable to be apportioned between Messrs Agarwal and Co. and Sassoons. This Court held (Jagannadhadas, J., dissenting) that Messrs Agarwal and Co, alone were liable to pay tax on the whole of the remuneration received under the contract of service between the United Mills, because the managing agency was entire and indivisible, and the remuneration or commission fell due to the managing agents, only on completion of a definite period of service and at stated periods it being a condition of recovery of wages or salary that the service or duty should be completely performed, Remuneration as managing agents constituted according to the Court "a debt only at the end of each such period of service and no remuneration or commission was payable to the managing agents for broken periods After referring to the observations of Fletcher Moulton, L. J., in Spanish Prospecting Co. Ltds. ; case.Ch 92 (already set out), Bhagwati, J., observed that "it would be absurd to suggest that the profits of the company could accrue from day to day or even from month to month". The working of the company from day to day could certainly not indicate any profit or loss, even the working of the company from month to month could not be taken as a reliable guide for this purpose. If the profit or loss has to be ascertained by a comparison of the assets at two stated points, the most businesslike way would be to so do at stated intervals of one year and that would be a reasonable period to be adopted for the purpose. In the case of large business concern the working of the company during a particular month may show profits and the working in another month may show loss. The business during the earlier part of the year may show profit or loss and in the later part of the year may show loss or profit which would go tothe profit or loss as the case may be in the earlier part of the year. It would, therefore, be reasonable determine the profit or loss as the case may be at the end of every year so that on such calculation of net profits the managing agents may be paid their remuneration or commission at the percentage stipulated in the managing agency agreement and the shareholders also be paid dividends out of the net profits of theit cannot be inferred therefrom that whenever the partnership receives gross receipts in respect of its business transaction in which is embedded some profit or loss of the partnership that profit or loss results immediately, on the gross receipts reaching the partnership to the individual partners in their aliquot shares. Normally, for profits to accrue or arise, there should be a right either under the statute or under contract between theand others which entitles the former to make a demand for thosethat be the correct ratio, and we think it is, the argument that a partnership is nothing but a compendious name for partners involving the corollary that a partner cannot be a creditor of the partnership will have no practical impact.
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Md.Jamiluddin Nasir Vs. State Of West Bengal | Road, Khirgaon and Hazaribagh. In pursuance to the said development, that place was surrounded by the police to nab the terrorists.7. The police team which proceeded to Khan Road, Khirgaon, Hazaribagh at 6.45 a.m. cordoned the premises and suspecting the inmates to be militants, stated to have announced that they should surrender putting down whatever weapons they possessed. While doing so, when they noticed two of the inmates escaped through the side gate shooting at the police and in the cross fire both of them were injured. When the injured were taken to the hospital, on the way, one of the injured by name Zahid made an oral dying declaration to PW-113 that he was one of the persons involved in the shooting spree at the American Centre, that he was the shooter and one Sadakat was the driver of the motor bike. The said Zahid stated to have died enroute the hospital. The other person Salim was admitted in the hospital who too later died. This happened on 27-28.01.2002. After the encounter that had taken place at Hazaribagh, while the shootout incident at American Centre was investigated by PW-123, who was heading the special investigation team, he received a vital information on the intervening night of 28-29.01.2002 at about 1.30 a.m. According to PW-113, on 20.01.2002, Calcutta Police arrived at Hazaribagh and a seizure list Exhibit-246 of PW-106s house which was rented to Nasir was handed over. According to the seizure list, two jackets were found which matched the attire of the American Centre attackers. This is how the search for Nasir since he was the tenant was started at 64, Tiljala Lane which was the fake address given by him at the instance of Asif on the said rent agreement. Through investigation, Nasirs address was found to be 46, Tiljala Lane. In pursuance of the said search, PW-123 went to No.13, Dargah Road which is the house of in-laws of Nasir, where he took Nasir into custody and based on his information made a search at No.1, Tiljala Lane where the Maruti Car and the Motor bike were seized. In fact after the commencement of his investigation on 22.02.2002 evening, the team of PW-123 was approached by PW-62, and one Gilbert Gomes (not examined) through the Inspector PW-101, Lalbazar who made statements relating to the incident of firing in front of American Centre and their statement revealed the use of Maruti Car and the Suzuki Motor bike at Rippon Street Circular Road Crossing. After landing at No.1, Tiljala Lane PW-123 could gather very many vital clues which led him to ultimately arrest of Aftab, who was already arrested by Dubai Police on 23.01.2002 and deported him to India on 09.02.2002. PW-123 could secure his custody through Court order on 23.02.2002. Based on Aftabs information, the residence of Asif was also searched where a diary maintained by Asif and a letter Exhibit-46/1 written by Aftab to the wife of Asif after Asifs demise was also seized. The letter was addressed to Bhabhiji for taking avenge on death of Asif. Later PW-105, a handwriting expert proved the handwriting of Aftab. In the Hazaribagh hideout after the encounter, PW-113 made a search of the premises where he could recover arms and ammunition such as AK-47 rifles, Pakistans national flag, bullets etc. According to PW-113, the deceased Zahid and Salim were Pakistani nationals and were members of Lashkare- Taiba, while Sadakat belonged to Uttar Pradesh.8. It is in the above stated background that the investigation team after a detailed inquiry ultimately filed its final report in Chargesheet No.38 of 2002 dated 26.04.2002 as against 15 persons and the charges were under Sections 121, 121A, 302, 307, 333 read with 122, 427, 467, 468 and 471 IPC. The Sessions Court, namely, the Calcutta City Court framed the charges against A1 to A9 on 29.08.2002 for offences under Sections 121A, 121, 122, 302 read with 120B, 307 read with 120B, 333 read with 120B, 467 read with 120B, 471 read with 120B, 468 read with 120B and 427 read with 120B IPC apart from offences under Sections 25(1), 27(2) and 27(3) of Arms Act. As stated by us earlier, the trial Court acquitted A4 and A5 of all the charges while A1 to A3 and A6 to A9 were convicted of charges levelled against them.9. In the death reference, as well as in the appeals preferred by Nasir and Aftab as well as the other convicts, the High Court having confirmed the conviction and sentence imposed on Nasir and Aftab in toto and acquitted A2 and A3 while modifying the conviction and sentence in respect of A6, A7 and A9 for lesser offence by the impugned common Judgment, we heard these appeals preferred by Nasir and Aftab. 10. We heard Ms. Nitya Ramakrishnan for the Appellants and Mr. Siddharth Luthra, learned Additional Solicitor General for the Respondent State. We also considered the written submissions filed on behalf of the Appellants, as well as the State and deal with such of those submissions which are really relevant and deliver this Judgment. At the very outset, it must be stated that there was a detailed consideration made by the learned Sessions Judge of the oral evidence, as well as documentary evidence and material objects placed before it, while passing its Judgment on 26.04.2005. Equally, the Division Bench of the High Court has made a thorough consideration of the material evidence and also the correctness of the Judgment of the learned Sessions Judge. In fact, though more than 100 Witnesses were examined on the side of the Prosecution and more than 250 documents were placed before the trial Court, we find that the crucial evidence which led to the ultimate conviction of Nasir and Aftab were mainly based on the confession of Nasir and the oral evidence of PWs 1 to 123 and the Exhibits. Also based on the above evidence, certain questions put to Nasir and Aftab under Section 313 of Cr. P.C. were also referred. | 0[ds]At the very outset, it must be stated that there was a detailed consideration made by the learned Sessions Judge of the oral evidence, as well as documentary evidence and material objects placed before it, while passing its Judgment on 26.04.2005. Equally, the Division Bench of the High Court has made a thorough consideration of the material evidence and also the correctness of the Judgment of the learned Sessions Judge. In fact, though more than 100 Witnesses were examined on the side of the Prosecution and more than 250 documents were placed before the trial Court, we find that the crucial evidence which led to the ultimate conviction of Nasir and Aftab were mainly based on the confession of Nasir and the oral evidence of PWs 1 to 123 and the Exhibits. Also based on the above evidence, certain questions put to Nasir and Aftab under Section 313 of Cr. P.C. were alsocan usefully refer to the relevant conclusions reached in the said decision which has been set out in paragraphs 85 to 91. The said paragraphs are asAll these concepts of "due process" and the concept of a just, fair and reasonable law have been read by this Court into the guarantee under Articles 14 and 21 of the Constitution. Therefore, the provision of Section 27(3) of the Act is violative of Articles 14 and 21 of the Constitution.86. Apart from that the said Section 27(3) is alaw and has to obey the injunction of Article 13 which is clear and explicit. Article 13(2) is as follows: 13.(3) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. 87. In view of the aforesaid mandate of Article 13 of the Constitution which is an article within Part III of our Constitution, Section 27(3) of the Act having been enacted in clear contravention of Part III rights, Section 27(3) of the Act is repugnant to Articles 14 and 21 and is void.88. Section 27(3) of the Act also deprives the judiciary from discharging its constitutional duties of judicial review whereby it has the power of using discretion in the sentencing procedure. This power has been acknowledged in Section 302 of the Penal Code and in Bachan Singh case it has been held that the sentencing power has to be exercised in accordance with the statutory sentencing structure under Section 235(2) and also under Section 354(3) of the Code of Criminal Procedure, 1973. Section 27(3) of the said Act while purporting to impose mandatory death penalty seeks to nullify those salutary provisions in theis contrary to the law laid down in Bachan Singh.89. In fact the challenge to the constitutional validity of death penalty under Section 302 of the Penal Code has been negatived in Bachan Singh in view of the sentencing structure in Sections 235(2) and 354(3) of the Criminal Procedure Code. By imposing mandatory death penalty, Section 27(3) of the Act runs contrary to those statutory safeguards which give judiciary the discretion in the matter imposing death penalty. Section 27(3) of the Act is thus ultra vires the concept of judicial review which is one of the basic features of our Constitution.90. It has also been discussed hereinabove that the ratio in both Bachan Singh and Mithu has been universally acknowledged in several jurisdictions across the world and has been accepted as correct articulation of Article 21the ratio in Mithu and Bachan Singh represents the concept of jus cogens meaning thereby the peremptorynorm in international law for protection of life and liberty. That is why it has been provided by theAmendment Act of 1978 of the Constitution, that Article 21 cannot be suspended even during the proclamation of emergency under Article 359 [vide Articleof the Constitution].91. This Court, therefore, holds that Section 27(3) of the Arms Act is against the fundamental tenets of our constitutional law as developed by this Court. This Court declares that Section 27(3) of the Arms Act, 1959 is ultra vires the Constitution and is declaredthe above minute factors were required to be kept in mind while recording a confession made under Section 164 in order to ensure that the confession was recorded at the free will of the accused and was not influenced by any other factor. Therefore, while considering a confession so recorded and relied upon by the Prosecution, the duty of the Sessions Judge is, therefore, to carefully analyse the confession keeping in mind the above factors and if while making such analysis the learned Session Judge develops any iota of doubt about the confession so recorded, the same will have to be rejected at the very outset. It is, therefore, for the Sessions Judge to apply his mind before placing reliance upon the confessional statement made under Section 164 and convince itself that none of the above factors were either violated or given a go by to reject the confession, if the Session Judge has chosen to rely upon such a confession recorded under Section 164, the appellate Court as well as this Court while examining such a reliance placed upon for the purpose of conviction should see whether the perception of the Courts below in having accepted the confession as having been made in its true spirit provide no scope for any doubt as to its veracity in making the statement by the accused concerned and only thereafter the contents of the confession can be examined.We find that the Magistrate did not want to give any chance to anyone to gain the impression that the confession which the Appellant Nasir wanted to make was recorded without giving him any scope to rethink or that unaware of the consequences that he came forward to make the statement. In fact it must be statedwas thorough with the ingredients prescribed in Section 164 relating to the recording of a confession by an accused and that he was not carrying out the exercise in a mechanical way but with all earnestness and in a highly dispassionate manner. Therefore, that part of the requirement, namely, the procedure to be followed while recording a confession statement has been scrupulously adhered to bybefore allowing the Appellant Nasir to make his confession. Again at the end, the Magistrate certified in the manner required under Section 164(4) and it was mentioned that no police personnel was allowed in his chambers when the confession was recorded.Having perused the above proceedings which are part of the record of the trial Court, in particular the letter ofdated 21.02.2002, we find that the custody of the Appellant Nasir with the police on 21.02.2002 was in connection with a different case, namely, case No.53 dated 11.02.2002. Therefore, the judicial custody of the Appellant as between 13.02.2002 and 27.02.2002 in connection with case No.19, namely, the American Centre case was independent of the custody of the Appellant with the police on 21.02.2002 when he was produced before the learned Metropolitan Magistrate, 14 th Court with the requisition to record his confession. In fact in the said letter dated 21.02.2002,has requisitioned the learned Magistrate to provide judicial custody even in case No.53 dated 12.02.2002 up till 07.03.2002, while simultaneously making a request for recording the confession of the Appellanteven while considering the requisition made byin the letter dated 21.02.2002 for recording the confession, the learned Magistrate being aware of the statutory prescription contained in Section 164 Cr.P.C. rightly decided not to record the confession but issue directions to keep Appellant Nasir in the custody of the Superintendent, Presidency Correctional Home Alipore and produced him on 22.02.2002 at 1 p.m. in order to ensure that the Appellant was free from the influence of police. Therefore, the Magistrate having thus ensured that the Appellant Nasir was taken into custody of the Court and was entrusted with the Superintendent of the Presidency Correctional Home till his production on the next day at 1 p.m. It must be stated that by resorting to such a course, the Magistrate ensured that there was no scope for any lacuna being created in the recording of the confession of the Appellant. In the light of our above findings, we do not find any force in the submissions of the learned counsel for the Appellant on this score.When we read this part of the deposition ofalong with the answers to questions 1 to 18 inwe find thathad ensured prior to the recording of the confessional statement as to the mindset of Appellant Nasir, his readiness to make the confessional statement without any hindrance and uninfluenced by any other force including police authorities and only thereafter, proceeded to record the statement. Having seen the above part of the deposition ofand the answers to questions 1 to 18 inthe confessional statement of Nasir, we are convinced that the Magistrate had exhaustively dealt with the statutory prescription under Section 164 Cr.P.C. and there is absolutely no flaw in the recording of the said statement. Therefore, the said contention of the learned counsel also does not merit any consideration.24. Having held that the confession statement of Appellant Nasir made under Section 164 was free from any technical flaw in its recording, as well as the procedures contemplated under the said provision, we now proceed to examine the truthfulness of its contents.25. When we consider the various facts narrated by Appellant Nasir which are found in his answer to question No.19 which runs to as many as 16 pages since the confession of Appellant Nasir who is one of the main accused in the case on hand has been relied upon by the trial Court, as well as the High Court to a great extent, we wish to examine the same threadbare before expressing our views on such reliance placed upon by the Courts below. When we read the confession,we find thatit contains very many details pertaining to himself, his family members, his earlier contact with deceased Asif and his subsequent contact with Asif in the year 1999 and thereafter how through Asif he became part of the group of other accused persons and at various stages he came in contact with different accused at different places and as to how ultimately the conspiracy was hatched for making the attack at the American Centre and as to how it was finally executedalso explains as to how subsequently he came to be apprehended by the police and thereafter, his repentance for whatever had happened to which he was also a party which pricked his conscience and ultimately made him to volunteer himself and make the statement on his own uninfluenced by any other external force as he felt that he committed a great sin by being part of the occurrence against his own homeland. In fact we feel that we should make reference to the above factors noted by us in his confession before dealing with the submission of learned counsel Ms. Nitya Ramakrishnan as to the various deficiencies in the confession as compared to other evidence which according to learned counsel should dissuade us from relying upon the said confession statement.statement.36. Having noted the various facts in the confession of Nasir, it must be stated that such a meticulous description of men and material, date, time and events including the passwords andaddresses could have been revealed only by a person who was really acquainted with those details. It is very difficult for anyone to imagine these facts and put it in a narrative form. In fact, whatever lacunae that could be pointed out by Ms. Nitya Ramakrishnan was in our considered opinion a very insignificant one which would not in any manner either discredit the statement or would go to the extent of saying that the statement was designed and procured or tailormade at the instance of someone, much less the investigation team to suit the case of themust be remembered thatwho being a Judicial Magistrate, nothing could be stated that he was in any way either influenced or prejudiced or in any manner persuaded to tow in line with the Prosecution to record such a statement. There was not even a remote suggestion tothat he was under the grip of the Prosecution while recording the confession of Appellant Nasir.When we consider the said contention we can only say thathad the agreement in his hand which was dated 11.07.2001 while Nasir who was making his confessional statement was not referring to any specific document. While according to Nasir it was2001 as per the document, it is found to be 11 th July 2001. There is no difference in the year concerned, namely, 2001. In fact, Nasir himself was not sure as to whether it was April or May. Therefore, he said2001. As between2001 and July 2001 it must be stated that the same cannot be held to be such a serious discrepancy in order to state that on that score the confession which he was able to narrate with high amount of cogency which explains the sequence of events as from the early childhood of the Appellant till he realised his folly in 2002 when he came forward to make the confession should be rejected. We therefore, reject the said submission as the same does not seriously impinge upon the confession made by the Appellant.While, thus accepting the said position as stated by Nasir in his confession, thefactors pointed out was the version of13 and some variation in the version of6, 9, 15, 16, 18, 19 and 20. It is necessary, however, to refer to those Witnesses before answering the submission of the learned counsel for the Appellant. The learned counsel drew our attention to the deposition of Witnesses, namely,When we consider the above evidence,we find that3, Zahid made a declaration, while he was sinking, that he did the shooting operation and Sadakat was the rider. As far asevidence is concerned, the same cannot be relied upon for the simple reason that what was stated to him by Zahid cannot be taken as a dying declaration. In order to be a valid dying declaration as specified under Section 32, primarily such statement of a dead person would be relevant to the cause of his death or any of the circumstances of the transactions which resulted in his death and that too in cases in which the cause of his death comes intoapart, it is by now well settled that for a statement to be accepted as a dying declaration, it should have passed the rigorous tests laid down in various judicial pronouncements as such a statement would be aone. More so, when it is claimed to be a oral declaration not supported by any other evidence, be it oral or documentary, therefore, based on the ipsi dixit ofreferring to Zahids declaration, it cannot be accepted as a valid piece of evidence. Therefore, the said part of the evidence ofrelating to thedying declaration of Zahid will have to be eschewed from consideration. When we say so, we are cautious of the fact that the Hazaribagh encounter gave a vital clue to the Investigating Team dealing with the American Centre case, which in our considered opinion will not be in any way hindered by eschewing from the considering the dying declaration aspect ofevidence. If thedying declaration of Zahid is eschewed from consideration, what is left is the evidence of the eyewitnesses, i.e.9, 15, 16, 18, 19, 20, 62 and the confessional statement ofs account merits acceptance as they had the full view of the assailants. In fact, according to some of them, both were shooting, some of them identified the photo of Zahid as the person who was riding the bike and shooting. Going by the version of Nasir, Zahid was riding and Sadakat was the pillion rider. We only point out that there was nofactor as was sought to be demonstrated on behalf of the Appellant in order to state that the whole evidence of theshould be rejected and that on that ground, the confession cannot also be relied upon. We will have to bear in mind that the confession has unfurled the whole of the story of the Prosecution, while this part of the evidence is confined to the act of shooting by one of the conspirators and that of riding a bike by antherare convinced that the evidence on record in particular theaccount who had the benefit of looking at the person who was shooting at the spot in the close vicinity and who are able to note a glaring feature namely, the dress worn by the shooter and the driver and also identified the photograph of the driver when shown to them, there is no reason why their version should not be believed for the purpose of identifying the assailant at the place of occurrence. Therefore, a cumulative consideration of our above discussion makes it clear that the confession of Nasir as it stands was not in any way contradicted by any of the Prosecution Witnesses, namely,9, 15, 16, 18, 19 and 20.45. When we come toaccording to whom at Rippon Street Circular Road Crossing when he was looking at Maruti car driven by Nasir withtwo persons arrived in a motor cycle stating that their mission was accomplished and that the person wearing green colour jacket who was a pillion rider, got down from the bike carrying a cricket bat cover, got into the car and thereafter, the car and the bike left the spot. Here again, we are not impressed by the submission that going by his version it should be held that there was a serious contradiction as regards the shooter and the rider which will lead to a conclusion offactor to discard the2 was not anto the shooting occurrence; secondly as between the place of occurrence and Rippon Street Circular Road Crossing what really transpired as between the rider and shooter was not known to him. The significance ofevidence would mainly relate to the identification of Nasir who had parked the vehicle at the spot whereand his friend were taking tea and by virtue of the haphazard parking on the road, there was a traffic jam which necessitatedto approach Nasir and ask him to park the vehicle properly in order to clear the way for smooth movement of vehicles. It was in that aspect the version ofis true at that point of time a little later he also witnessed the two persons who arrived at the spot in a motor bike expressing their successful achievement of their operation and one of them who was the pillion rider got into the Maruti car after which both the vehicles left the spot. It can only be stated that even assuming for the sake of argument based on theversion some contradiction as regards the jacket colour having regard to the overwhelming evidence pointed out by us by making reference to9, 15, 16, 18, 19 and 20, evidence ofshould be ignored as a very insignificant one. Therefore, on this ground we are not convinced that anyfactor can be attributed to dislodge theWhatever arms and ammunition including therifles at the premises at Hazaribagh was found to be the weapons not used for shooting at the American Centre. Sadakat was an absconder, though, later he was apprehended and is now being tried. Therefore, any recovery made at the instance of Sadakat, who is now facing the trial, is not known. In such circumstances, thewhich was used for shooting at the American Centre cannot be a ground to disbelieve the statement contained in the confession of Nasir.48. As far as the contention made on behalf of the Appellant that nonproduction of the weapon used in the attack is fatal to the case of the Prosecution is concerned, the reliance placed upon by thelearned Additional SolicitorGeneral to the decision reported in Ram Singh vs. State of Rajasthan(2012) 12 SCC 339 would meet the said contention. In paragraphs 8 and 10, this Court has also held that thenonproduction of the weapon used in the attack isneither fatal to the Prosecution case nor any adverse inference can be drawn on that score. Therefore, the said submission is alsohave referred to the requisition made byand the order passed by the Magistrate, 14 th Court Calcutta on 21.02.2002 by which he issued directions to lodge the Appellant Nasir in the Calcutta Presidency Correction Home on that day by segregating him from other accused and strangers for being produced on 22.02.2002 to give enough time for Appellant Nasir to rethink as to whether or not he should make thehave found that the Appellant was in the custody in connection with case No.53 dated 12.02.2002 for certain offences under the Arms Act while he was in judicial custody up till 22.02.2002 and, therefore, those materials disclose as to how Appellant Nasir happened to be in the custody of the police on 21.02.2002. Inasmuch as the said situation has been explained by valid documents, the said circumstance also does not in any way vitiate the confession made byquestion was with reference tonamely, the Magistrate who recorded the confession of the Appellant, who stated that he certified about the voluntariness of the statement and proved the statement before the Court marked asand what was the reaction of the Appellant. By saying that he was innocent and he did not know anything, we do not find anything to be implied that the whole of the confession has to be rejected based on the saidNo.563 was again related towherein it was put to Appellant Nasir that learned Chief Metropolitan Magistrate sent Nasir the case record of GR190 of 2002 for recording the confessional statement of Nasir and what he had toanswer was that on 21.02.2002, I was on police record, I was not sent to any Magistrate for recording confessional statement, though, the said answer contradicted the factum of the confessional statement recorded byBy merely accepting such a denial of the factum of production of the Appellant for the purpose of recording of confessional statement beforeit cannot be inferred that as between the version ofand the stand of the Appellant without anything more, the stand of the Appellant should be believed. In fact, for question No.564, it was explained to the Appellant thatgave necessary caution to him, assured him that if he declined to make any statement he will not be sent to police custody and that thereafter,sent him for jail custody for refreshment of his mind with a direction to the Superintendent, Presidency Correction Home to keep him in completeagain the Appellant came forward with only an answer that it was false and that he was innocent. We can understand if the Appellant had stated that nothing transpired on 21 st February, 2002 and 22 nd February, 2002 when the confession was recorded by the Magistrate | 0 | 3,960 | 4,117 | ### Instruction:
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Road, Khirgaon and Hazaribagh. In pursuance to the said development, that place was surrounded by the police to nab the terrorists.7. The police team which proceeded to Khan Road, Khirgaon, Hazaribagh at 6.45 a.m. cordoned the premises and suspecting the inmates to be militants, stated to have announced that they should surrender putting down whatever weapons they possessed. While doing so, when they noticed two of the inmates escaped through the side gate shooting at the police and in the cross fire both of them were injured. When the injured were taken to the hospital, on the way, one of the injured by name Zahid made an oral dying declaration to PW-113 that he was one of the persons involved in the shooting spree at the American Centre, that he was the shooter and one Sadakat was the driver of the motor bike. The said Zahid stated to have died enroute the hospital. The other person Salim was admitted in the hospital who too later died. This happened on 27-28.01.2002. After the encounter that had taken place at Hazaribagh, while the shootout incident at American Centre was investigated by PW-123, who was heading the special investigation team, he received a vital information on the intervening night of 28-29.01.2002 at about 1.30 a.m. According to PW-113, on 20.01.2002, Calcutta Police arrived at Hazaribagh and a seizure list Exhibit-246 of PW-106s house which was rented to Nasir was handed over. According to the seizure list, two jackets were found which matched the attire of the American Centre attackers. This is how the search for Nasir since he was the tenant was started at 64, Tiljala Lane which was the fake address given by him at the instance of Asif on the said rent agreement. Through investigation, Nasirs address was found to be 46, Tiljala Lane. In pursuance of the said search, PW-123 went to No.13, Dargah Road which is the house of in-laws of Nasir, where he took Nasir into custody and based on his information made a search at No.1, Tiljala Lane where the Maruti Car and the Motor bike were seized. In fact after the commencement of his investigation on 22.02.2002 evening, the team of PW-123 was approached by PW-62, and one Gilbert Gomes (not examined) through the Inspector PW-101, Lalbazar who made statements relating to the incident of firing in front of American Centre and their statement revealed the use of Maruti Car and the Suzuki Motor bike at Rippon Street Circular Road Crossing. After landing at No.1, Tiljala Lane PW-123 could gather very many vital clues which led him to ultimately arrest of Aftab, who was already arrested by Dubai Police on 23.01.2002 and deported him to India on 09.02.2002. PW-123 could secure his custody through Court order on 23.02.2002. Based on Aftabs information, the residence of Asif was also searched where a diary maintained by Asif and a letter Exhibit-46/1 written by Aftab to the wife of Asif after Asifs demise was also seized. The letter was addressed to Bhabhiji for taking avenge on death of Asif. Later PW-105, a handwriting expert proved the handwriting of Aftab. In the Hazaribagh hideout after the encounter, PW-113 made a search of the premises where he could recover arms and ammunition such as AK-47 rifles, Pakistans national flag, bullets etc. According to PW-113, the deceased Zahid and Salim were Pakistani nationals and were members of Lashkare- Taiba, while Sadakat belonged to Uttar Pradesh.8. It is in the above stated background that the investigation team after a detailed inquiry ultimately filed its final report in Chargesheet No.38 of 2002 dated 26.04.2002 as against 15 persons and the charges were under Sections 121, 121A, 302, 307, 333 read with 122, 427, 467, 468 and 471 IPC. The Sessions Court, namely, the Calcutta City Court framed the charges against A1 to A9 on 29.08.2002 for offences under Sections 121A, 121, 122, 302 read with 120B, 307 read with 120B, 333 read with 120B, 467 read with 120B, 471 read with 120B, 468 read with 120B and 427 read with 120B IPC apart from offences under Sections 25(1), 27(2) and 27(3) of Arms Act. As stated by us earlier, the trial Court acquitted A4 and A5 of all the charges while A1 to A3 and A6 to A9 were convicted of charges levelled against them.9. In the death reference, as well as in the appeals preferred by Nasir and Aftab as well as the other convicts, the High Court having confirmed the conviction and sentence imposed on Nasir and Aftab in toto and acquitted A2 and A3 while modifying the conviction and sentence in respect of A6, A7 and A9 for lesser offence by the impugned common Judgment, we heard these appeals preferred by Nasir and Aftab. 10. We heard Ms. Nitya Ramakrishnan for the Appellants and Mr. Siddharth Luthra, learned Additional Solicitor General for the Respondent State. We also considered the written submissions filed on behalf of the Appellants, as well as the State and deal with such of those submissions which are really relevant and deliver this Judgment. At the very outset, it must be stated that there was a detailed consideration made by the learned Sessions Judge of the oral evidence, as well as documentary evidence and material objects placed before it, while passing its Judgment on 26.04.2005. Equally, the Division Bench of the High Court has made a thorough consideration of the material evidence and also the correctness of the Judgment of the learned Sessions Judge. In fact, though more than 100 Witnesses were examined on the side of the Prosecution and more than 250 documents were placed before the trial Court, we find that the crucial evidence which led to the ultimate conviction of Nasir and Aftab were mainly based on the confession of Nasir and the oral evidence of PWs 1 to 123 and the Exhibits. Also based on the above evidence, certain questions put to Nasir and Aftab under Section 313 of Cr. P.C. were also referred.
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of occurrence. Therefore, a cumulative consideration of our above discussion makes it clear that the confession of Nasir as it stands was not in any way contradicted by any of the Prosecution Witnesses, namely,9, 15, 16, 18, 19 and 20.45. When we come toaccording to whom at Rippon Street Circular Road Crossing when he was looking at Maruti car driven by Nasir withtwo persons arrived in a motor cycle stating that their mission was accomplished and that the person wearing green colour jacket who was a pillion rider, got down from the bike carrying a cricket bat cover, got into the car and thereafter, the car and the bike left the spot. Here again, we are not impressed by the submission that going by his version it should be held that there was a serious contradiction as regards the shooter and the rider which will lead to a conclusion offactor to discard the2 was not anto the shooting occurrence; secondly as between the place of occurrence and Rippon Street Circular Road Crossing what really transpired as between the rider and shooter was not known to him. The significance ofevidence would mainly relate to the identification of Nasir who had parked the vehicle at the spot whereand his friend were taking tea and by virtue of the haphazard parking on the road, there was a traffic jam which necessitatedto approach Nasir and ask him to park the vehicle properly in order to clear the way for smooth movement of vehicles. It was in that aspect the version ofis true at that point of time a little later he also witnessed the two persons who arrived at the spot in a motor bike expressing their successful achievement of their operation and one of them who was the pillion rider got into the Maruti car after which both the vehicles left the spot. It can only be stated that even assuming for the sake of argument based on theversion some contradiction as regards the jacket colour having regard to the overwhelming evidence pointed out by us by making reference to9, 15, 16, 18, 19 and 20, evidence ofshould be ignored as a very insignificant one. Therefore, on this ground we are not convinced that anyfactor can be attributed to dislodge theWhatever arms and ammunition including therifles at the premises at Hazaribagh was found to be the weapons not used for shooting at the American Centre. Sadakat was an absconder, though, later he was apprehended and is now being tried. Therefore, any recovery made at the instance of Sadakat, who is now facing the trial, is not known. In such circumstances, thewhich was used for shooting at the American Centre cannot be a ground to disbelieve the statement contained in the confession of Nasir.48. As far as the contention made on behalf of the Appellant that nonproduction of the weapon used in the attack is fatal to the case of the Prosecution is concerned, the reliance placed upon by thelearned Additional SolicitorGeneral to the decision reported in Ram Singh vs. State of Rajasthan(2012) 12 SCC 339 would meet the said contention. In paragraphs 8 and 10, this Court has also held that thenonproduction of the weapon used in the attack isneither fatal to the Prosecution case nor any adverse inference can be drawn on that score. Therefore, the said submission is alsohave referred to the requisition made byand the order passed by the Magistrate, 14 th Court Calcutta on 21.02.2002 by which he issued directions to lodge the Appellant Nasir in the Calcutta Presidency Correction Home on that day by segregating him from other accused and strangers for being produced on 22.02.2002 to give enough time for Appellant Nasir to rethink as to whether or not he should make thehave found that the Appellant was in the custody in connection with case No.53 dated 12.02.2002 for certain offences under the Arms Act while he was in judicial custody up till 22.02.2002 and, therefore, those materials disclose as to how Appellant Nasir happened to be in the custody of the police on 21.02.2002. Inasmuch as the said situation has been explained by valid documents, the said circumstance also does not in any way vitiate the confession made byquestion was with reference tonamely, the Magistrate who recorded the confession of the Appellant, who stated that he certified about the voluntariness of the statement and proved the statement before the Court marked asand what was the reaction of the Appellant. By saying that he was innocent and he did not know anything, we do not find anything to be implied that the whole of the confession has to be rejected based on the saidNo.563 was again related towherein it was put to Appellant Nasir that learned Chief Metropolitan Magistrate sent Nasir the case record of GR190 of 2002 for recording the confessional statement of Nasir and what he had toanswer was that on 21.02.2002, I was on police record, I was not sent to any Magistrate for recording confessional statement, though, the said answer contradicted the factum of the confessional statement recorded byBy merely accepting such a denial of the factum of production of the Appellant for the purpose of recording of confessional statement beforeit cannot be inferred that as between the version ofand the stand of the Appellant without anything more, the stand of the Appellant should be believed. In fact, for question No.564, it was explained to the Appellant thatgave necessary caution to him, assured him that if he declined to make any statement he will not be sent to police custody and that thereafter,sent him for jail custody for refreshment of his mind with a direction to the Superintendent, Presidency Correction Home to keep him in completeagain the Appellant came forward with only an answer that it was false and that he was innocent. We can understand if the Appellant had stated that nothing transpired on 21 st February, 2002 and 22 nd February, 2002 when the confession was recorded by the Magistrate
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ERUDHAYA PRIYA Vs. STATE EXPRESS TRANSPORT CORPORATION LTD | was also attributed under various heads of extra nourishment, medical expenses, physiotherapy, loss of matrimonial aspects, loss of comfort and amenities, mental agony, and pain and suffering. The total quantification of the compensation by the MACT was of Rs. 35,24,288/- payable by the respondent State Corporation along with interest @ 7.5% per annum from the date of petition till the date of realization with costs. 4. The respondent State Corporation filed an appeal against this order and the appellant filed cross objections. Both of them were decided by the impugned judgment of the High Court dated 27.10.2017 by a common order. The High Court, confirming the findings of negligence of the bus driver, reduced the compensation to Rs. 25,00,000/- primarily on the ground that the multiplier method for quantifying loss of earning power has been wrongly applied as it had not come on record as to how the injuries suffered by the appellant would have a bearing on her earning capacity as a software engineer. The interest rate was sustained. 5. The appellant has claimed before this Court that she is entitled to enhancement of compensation even over and above what was granted by the MACT and has quantified the same as Rs. 41,69,831/- under various heads along with claiming a revised interest rate @ 12% per annum. 6. We heard learned counsels for the parties. They have also filed short synopses of their respective claims and rebuttals thereof, with the appellant enlisting the principles which can apply to her case, the law being now well settled in like cases. 7. There are three aspects which are required to be examined by us: (a) the application of multiplier of 17 instead of 18; The aforesaid increase of multiplier is sought on the basis of age of the appellant as 23 years relying on the judgment in National Insurance Company Limited v. Pranay Sethi and Others (2017) 16 SCC 680 . In para 42 of the said judgment, the Constitution Bench effectively affirmed the multiplier method to be used as mentioned in the table in the case of Sarla Verma (Smt) and Others. v. Delhi Transport Corporation and Another. (2009) 6 SCC 121. In the age group of 15- 25 years, the multiplier has to be 18 along with factoring in the extent of disability. The aforesaid position is not really disputed by learned counsel for the respondent State Corporation and, thus, we come to the conclusion that the multiplier to be applied in the case of the appellant has to be 18 and not 17. (b) Loss of earning capacity of the appellant with permanent disability of 31.1% In respect of the aforesaid, the appellant has claimed compensation on what is stated to be the settled principle set out in Jagdish v. Mohan & Others (2018) 4 SCC 571 and Sandeep Khanuja v. Atul Dande & Another (2017) 3 SCC 351. We extract below the principle set out in the Jagdish case (supra) in para 8: 8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects: (i) Pain, suffering and trauma resulting from the accident; (ii) Loss of income including future income; (iii) The inability of the victim to lead a normal life together with its amenities; (iv) Medical expenses including those that the victim may be required to undertake in future; and (v) Loss of expectation of life. [emphasis supplied] The aforesaid principle has also been emphasized in an earlier judgment, i.e. the Sandeep Khanuja case (supra) opining that the multiplier method was logically sound and legally well established to quantify the loss of income as a result of death or permanent disability suffered in an accident. In the factual contours of the present case, if we examine the disability certificate, it shows the admission/hospitalization on 8 occasions for various number of days over 1 ½ years from August 2011 to January 2013. The nature of injuries had been set out as under: Nature of injury: (i) compound fracture shaft left humerus (ii) fracture both bones left forearm (iii) compound fracture both bones right forearm (iv) fracture 3 rd , 4 th & 5 th metacarpals right hand (v) subtrochanteric fracture right femur (vi) fracture shaft left femur (vii) fracture both bones left leg We have also perused the photographs annexed to the petition showing the current physical state of the appellant, though it is stated by learned counsel for the respondent State Corporation that the same was not on record in the trial court. Be that as it may, this is the position even after treatment and the nature of injuries itself show their extent. Further, it has been opined in para 12 of Sandeep Khanuja case (supra) that while applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration. We are, thus, unequivocally of the view that there is merit in the contention of the appellant and the aforesaid principles with regard to future prospects must also be applied in the case of the appellant taking the permanent disability as 31.1%. The quantification of the same on the basis of the judgment in National Insurance Co. Ltd. case (supra), more specifically para 59.3, considering the age of the appellant, would be 50% of the actual salary in the present case. (c) The third and the last aspect is the interest rate claimed as 12% In respect of the aforesaid, the appellant has watered down the interest rate during the course of hearing to 9% in view of the judicial pronouncements including in the Jagdish case (supra). On this aspect, once again, there was no serious dispute raised by the learned counsel for the respondent once the claim was confined to 9% in line with the interest rates applied by this Court. CONCLUSION | 1[ds]6. We heard learned counsels for the parties. They have also filed short synopses of their respective claims and rebuttals thereof, with the appellant enlisting the principles which can apply to her case, the law being now well settled in like cases.7. There are three aspects which are required to be examined by us:(a) the application of multiplier of 17 instead of 18;The aforesaid increase of multiplier is sought on the basis of age of the appellant as 23 years relying on the judgment in National Insurance Company Limited v. Pranay Sethi and Others (2017) 16 SCC 680 . In para 42 of the said judgment, the Constitution Bench effectively affirmed the multiplier method to be used as mentioned in the table in the case of Sarla Verma (Smt) and Others. v. Delhi Transport Corporation and Another. (2009) 6 SCC 121. In the age group of 15- 25 years, the multiplier has to be 18 along with factoring in the extent of disability.The aforesaid position is not really disputed by learned counsel for the respondent State Corporation and, thus, we come to the conclusion that the multiplier to be applied in the case of the appellant has to be 18 and not 17.(b) Loss of earning capacity of the appellant with permanent disability of 31.1% In respect of the aforesaid, the appellant has claimed compensation on what is stated to be the settled principle set out in Jagdish v. Mohan & Others (2018) 4 SCC 571 andSandeep Khanuja v. Atul Dande & Another (2017) 3 SCC 351. We extract below the principle set out in the Jagdish case (supra) in para 8:8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects:(i) Pain, suffering and trauma resulting from the accident;(ii) Loss of income including future income;(iii) The inability of the victim to lead a normal life together with its amenities;(iv) Medical expenses including those that the victim may be required to undertake in future; and(v) Loss of expectation of life.[emphasis supplied]The aforesaid principle has also been emphasized in an earlier judgment, i.e. the Sandeep Khanuja case (supra) opining that the multiplier method was logically sound and legally well established to quantify the loss of income as a result of death or permanent disability suffered in an accident.In the factual contours of the present case, if we examine the disability certificate, it shows the admission/hospitalization on 8 occasions for various number of days over 1 ½ years from August 2011 to January 2013. The nature of injuries had been set out as under:Nature of injury:(i) compound fracture shaft left humerus(ii) fracture both bones left forearm(iii) compound fracture both bones right forearm(iv) fracture 3 rd , 4 th & 5 th metacarpals right hand(v) subtrochanteric fracture right femur(vi) fracture shaft left femur(vii) fracture both bones left legWe have also perused the photographs annexed to the petition showing the current physical state of the appellant, though it is stated by learned counsel for the respondent State Corporation that the same was not on record in the trial court. Be that as it may, this is the position even after treatment and the nature of injuries itself show their extent. Further, it has been opined in para 12 of Sandeep Khanuja case (supra) that while applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration.We are, thus, unequivocally of the view that there is merit in the contention of the appellant and the aforesaid principles with regard to future prospects must also be applied in the case of the appellant taking the permanent disability as 31.1%. The quantification of the same on the basis of the judgment in National Insurance Co. Ltd. case (supra), more specifically para 59.3, considering the age of the appellant, would be 50% of the actual salary in the present case.(c) The third and the last aspect is the interest rate claimed as 12% In respect of the aforesaid, the appellant has watered down the interest rate during the course of hearing to 9% in view of the judicial pronouncements including in the Jagdish case (supra). On this aspect, once again, there was no serious dispute raised by the learned counsel for the respondent once the claim was confined to 9% in line with the interest rates applied by this Court. | 1 | 1,540 | 889 | ### Instruction:
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was also attributed under various heads of extra nourishment, medical expenses, physiotherapy, loss of matrimonial aspects, loss of comfort and amenities, mental agony, and pain and suffering. The total quantification of the compensation by the MACT was of Rs. 35,24,288/- payable by the respondent State Corporation along with interest @ 7.5% per annum from the date of petition till the date of realization with costs. 4. The respondent State Corporation filed an appeal against this order and the appellant filed cross objections. Both of them were decided by the impugned judgment of the High Court dated 27.10.2017 by a common order. The High Court, confirming the findings of negligence of the bus driver, reduced the compensation to Rs. 25,00,000/- primarily on the ground that the multiplier method for quantifying loss of earning power has been wrongly applied as it had not come on record as to how the injuries suffered by the appellant would have a bearing on her earning capacity as a software engineer. The interest rate was sustained. 5. The appellant has claimed before this Court that she is entitled to enhancement of compensation even over and above what was granted by the MACT and has quantified the same as Rs. 41,69,831/- under various heads along with claiming a revised interest rate @ 12% per annum. 6. We heard learned counsels for the parties. They have also filed short synopses of their respective claims and rebuttals thereof, with the appellant enlisting the principles which can apply to her case, the law being now well settled in like cases. 7. There are three aspects which are required to be examined by us: (a) the application of multiplier of 17 instead of 18; The aforesaid increase of multiplier is sought on the basis of age of the appellant as 23 years relying on the judgment in National Insurance Company Limited v. Pranay Sethi and Others (2017) 16 SCC 680 . In para 42 of the said judgment, the Constitution Bench effectively affirmed the multiplier method to be used as mentioned in the table in the case of Sarla Verma (Smt) and Others. v. Delhi Transport Corporation and Another. (2009) 6 SCC 121. In the age group of 15- 25 years, the multiplier has to be 18 along with factoring in the extent of disability. The aforesaid position is not really disputed by learned counsel for the respondent State Corporation and, thus, we come to the conclusion that the multiplier to be applied in the case of the appellant has to be 18 and not 17. (b) Loss of earning capacity of the appellant with permanent disability of 31.1% In respect of the aforesaid, the appellant has claimed compensation on what is stated to be the settled principle set out in Jagdish v. Mohan & Others (2018) 4 SCC 571 and Sandeep Khanuja v. Atul Dande & Another (2017) 3 SCC 351. We extract below the principle set out in the Jagdish case (supra) in para 8: 8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects: (i) Pain, suffering and trauma resulting from the accident; (ii) Loss of income including future income; (iii) The inability of the victim to lead a normal life together with its amenities; (iv) Medical expenses including those that the victim may be required to undertake in future; and (v) Loss of expectation of life. [emphasis supplied] The aforesaid principle has also been emphasized in an earlier judgment, i.e. the Sandeep Khanuja case (supra) opining that the multiplier method was logically sound and legally well established to quantify the loss of income as a result of death or permanent disability suffered in an accident. In the factual contours of the present case, if we examine the disability certificate, it shows the admission/hospitalization on 8 occasions for various number of days over 1 ½ years from August 2011 to January 2013. The nature of injuries had been set out as under: Nature of injury: (i) compound fracture shaft left humerus (ii) fracture both bones left forearm (iii) compound fracture both bones right forearm (iv) fracture 3 rd , 4 th & 5 th metacarpals right hand (v) subtrochanteric fracture right femur (vi) fracture shaft left femur (vii) fracture both bones left leg We have also perused the photographs annexed to the petition showing the current physical state of the appellant, though it is stated by learned counsel for the respondent State Corporation that the same was not on record in the trial court. Be that as it may, this is the position even after treatment and the nature of injuries itself show their extent. Further, it has been opined in para 12 of Sandeep Khanuja case (supra) that while applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration. We are, thus, unequivocally of the view that there is merit in the contention of the appellant and the aforesaid principles with regard to future prospects must also be applied in the case of the appellant taking the permanent disability as 31.1%. The quantification of the same on the basis of the judgment in National Insurance Co. Ltd. case (supra), more specifically para 59.3, considering the age of the appellant, would be 50% of the actual salary in the present case. (c) The third and the last aspect is the interest rate claimed as 12% In respect of the aforesaid, the appellant has watered down the interest rate during the course of hearing to 9% in view of the judicial pronouncements including in the Jagdish case (supra). On this aspect, once again, there was no serious dispute raised by the learned counsel for the respondent once the claim was confined to 9% in line with the interest rates applied by this Court. CONCLUSION
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6. We heard learned counsels for the parties. They have also filed short synopses of their respective claims and rebuttals thereof, with the appellant enlisting the principles which can apply to her case, the law being now well settled in like cases.7. There are three aspects which are required to be examined by us:(a) the application of multiplier of 17 instead of 18;The aforesaid increase of multiplier is sought on the basis of age of the appellant as 23 years relying on the judgment in National Insurance Company Limited v. Pranay Sethi and Others (2017) 16 SCC 680 . In para 42 of the said judgment, the Constitution Bench effectively affirmed the multiplier method to be used as mentioned in the table in the case of Sarla Verma (Smt) and Others. v. Delhi Transport Corporation and Another. (2009) 6 SCC 121. In the age group of 15- 25 years, the multiplier has to be 18 along with factoring in the extent of disability.The aforesaid position is not really disputed by learned counsel for the respondent State Corporation and, thus, we come to the conclusion that the multiplier to be applied in the case of the appellant has to be 18 and not 17.(b) Loss of earning capacity of the appellant with permanent disability of 31.1% In respect of the aforesaid, the appellant has claimed compensation on what is stated to be the settled principle set out in Jagdish v. Mohan & Others (2018) 4 SCC 571 andSandeep Khanuja v. Atul Dande & Another (2017) 3 SCC 351. We extract below the principle set out in the Jagdish case (supra) in para 8:8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects:(i) Pain, suffering and trauma resulting from the accident;(ii) Loss of income including future income;(iii) The inability of the victim to lead a normal life together with its amenities;(iv) Medical expenses including those that the victim may be required to undertake in future; and(v) Loss of expectation of life.[emphasis supplied]The aforesaid principle has also been emphasized in an earlier judgment, i.e. the Sandeep Khanuja case (supra) opining that the multiplier method was logically sound and legally well established to quantify the loss of income as a result of death or permanent disability suffered in an accident.In the factual contours of the present case, if we examine the disability certificate, it shows the admission/hospitalization on 8 occasions for various number of days over 1 ½ years from August 2011 to January 2013. The nature of injuries had been set out as under:Nature of injury:(i) compound fracture shaft left humerus(ii) fracture both bones left forearm(iii) compound fracture both bones right forearm(iv) fracture 3 rd , 4 th & 5 th metacarpals right hand(v) subtrochanteric fracture right femur(vi) fracture shaft left femur(vii) fracture both bones left legWe have also perused the photographs annexed to the petition showing the current physical state of the appellant, though it is stated by learned counsel for the respondent State Corporation that the same was not on record in the trial court. Be that as it may, this is the position even after treatment and the nature of injuries itself show their extent. Further, it has been opined in para 12 of Sandeep Khanuja case (supra) that while applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration.We are, thus, unequivocally of the view that there is merit in the contention of the appellant and the aforesaid principles with regard to future prospects must also be applied in the case of the appellant taking the permanent disability as 31.1%. The quantification of the same on the basis of the judgment in National Insurance Co. Ltd. case (supra), more specifically para 59.3, considering the age of the appellant, would be 50% of the actual salary in the present case.(c) The third and the last aspect is the interest rate claimed as 12% In respect of the aforesaid, the appellant has watered down the interest rate during the course of hearing to 9% in view of the judicial pronouncements including in the Jagdish case (supra). On this aspect, once again, there was no serious dispute raised by the learned counsel for the respondent once the claim was confined to 9% in line with the interest rates applied by this Court.
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Percept D'Mark (India) Pvt.Ltd Vs. Zaheer Khan | defendants to continue to employ in the fiduciary capacity of a manager and agent someone in whom he had lost confidence. 60. Clause 31 (a) and (b) is reproduced below:- "31. NEGOTIATION AND RIGHTS OF FIRST REFUSAL: (a) NEGOTIATION: During the third contract year, and in any event not later than August 1st, 2003 the Parties shall meet to commence discussions with a view to the extension of their relationship beyond the Term. For sixty (60) days thereafter, Zaheer Khan, agrees to negotiate in good faith only with Percept, and not with any third party, concerning the right after the Term to the use of his endorsement or for the arrangement contemplated by this Agreement in association with any goods or services. Only after such one hundred and eighty (180) day period from the date of the last assignment, Zaheer Khan shall have the right to negotiate with other persons, subject however to sub-clause (b). (b) FIRST REFUSAL: During the Term of the Agreement, prior to completion of the first negotiation period provided for in sub-clause (a) above, Zaheer Khan agrees not to accept any offer for his endorsement, promotion, advertising, or other affiliation with regard to any products or services. Thereafter, Zaheer Khan agrees not to accept any offer for his endorsement, promotion, advertising, or other affiliation with regard to any goods or services or for arrangement similar to the transaction hereunder without first providing Percept with written notice of such offer and all the material terms and conditions thereof and offering Percept the right to match the third party offer. Percept shall thereafter have right, exercisable by written notice to Zaheer Khan within ten(10) days of receipt, to accept Zaheer Khans offer on the same terms and conditions offered by such third party. If Percept does not accept Zaheer Khans offer, Zaheer Khan shall thereafter have the right to enter into an agreement with such third party. 61. In our view, Clause 31(b) of the agreement merely provides for an obligation of respondent No.1 to give an opportunity to the appellant to match the offer, if any, received by respondent No.1 from the third party. This clause does not per se restrict or prohibit respondent No.1 to enter into any contract with a third party but at best it provides the appellant with an opportunity to gain from the advertisements the appellant has made in the process of marketing and creation of the image of respondent No.1 which was gradually built up by the appellant. This clause does not restrict the right of respondent No.1 to accept any offer for endorsement, promotion, advertising or other affiliation either on his own or through any party in the event of failure of the appellant to match the offer of the third party from whom respondent No.1 would receive any offer, respondent No.1 would be free to contract with such third party. Further, the said clause does not restrict the right of respondent No.1 to appoint an agent of his choice or restrict his liberty to carry on his affairs in the manner he likes, with the persons he chooses, in the manner he thinks best. The restriction, if any, is on account of voluntary obligations undertaken by respondent No.1 and assurances made by him to the appellant wherefor, respondent No.1 cannot be permitted to renege his promises under the garb of an alleged restriction violative of Section 27 of the Contract Act. Clause 31(b) of the agreement is an independent clause which survives the expiry of the agreement and any dispute between the parties regarding the enforceability of the said clause would come under the provision of Clause 32(g) of the agreement which provides for resolution of any claim or controversy pertaining to the agreement through the process of arbitration. 62. Clause 32(g) of is reproduced below: "G) ARBITRATION: Any claims or controversies relating to this Agreement shall be resolved by arbitration held under the auspices and rules of the Indian Arbitration and Conciliation Act, 1996 by one arbitrator appointed in accordance with the arbitration rules. The place of arbitration shall be Mumbai. Any award of such arbitration shall be final, conclusive and legally binding, without any right of appeal and may be entered into judgment in any court of competent jurisdiction. This Agreement and all matters related hereto shall be governed by the laws of India." 63. In our view, no case is made out by the appellant for compelling respondent No.1 to appoint the appellant as his agent in perpetuity when the first respondent has no faith or trust in the appellant. The grant of injunction restraining respondent No.1 from acting upon the agreement entered into with the second respondent would have the effect of compelling the first respondent to be managed by the appellant, in substance and effect a decree of specific performance of an agreement of personal service, which is dependant on mutual trust, faith and confidence which, in the present case, are eroded and non-existent. In our view, the appellant can be adequately compensated in terms of money if injunction is refused. Clause 31(b) contains a restrictive covenant in restraint of trade as it clearly restricts respondent No.1 from his future liberty to deal with the persons he chooses for his endorsements, promotions, advertising or other affiliation and such a type of restriction extending beyond the tenure of the contract is clearly hit by Section 27 of the Contract Act and is void. The said covenant, as noticed earlier, curtails the liberty of respondent No.1 Zaheer Khan even though the contract has been completed to accept any offer for his endorsement, promotion etc even by dealing with any person of his own. 64. As already noticed, no interim relief having been granted in favour of the appellant during the past 2= years during which the contract between respondent Nos.1 and 2 has been in operation and indeed is soon to be completed, there is no cause for interference at this late stage by this Court. | 0[ds]We have already perused the judgment of the learned Single Judge and of the learned Division Bench of the High Court. On the pleadings contained in the Arbitration Petition, there can be no escape from the conclusion that what the appellant sought to enforce was a negative covenant which, according to the appellant, survived the expiry of the agreement. This, the High Court has rightly held is impermissible as such a clause which is sought to be enforced after the term of the contract is prima facie void under Section 27 of the Contract ActWe have perused the relevant portions of Niranjan Shankar Golikari (supra), Superintendence Company of India (supra) and Gujarat Bottling (supra) which have been extracted by the learned Judges of the Division Bench and quoted in extenso. In the circumstances, there can be no manner of doubt that the Division Bench was right in coming to the prima facie conclusion drawn by it, and in setting aside the Single Judges order. No case was made out by the appellant for compelling respondent No.1 to appoint the appellant as his agent in perpetuity. In view of the personal nature of the service and relationship between the contracting parties, a contract of agency/management such as the one entered into between the appellant and respondent No.1 is incapable of specific performance and to enforce the performance thereof would be inequitable. Likewise, grant of injunction restraining first respondent would have the effect of compelling the first respondent to be managed by the appellant, in substance and effect a decree of specific performance of an agreement of fiduciary or personal character or service, which is dependent on mutual trust, faith and confidenceThe appellant can be adequately compensated in terms of money if injunction is refused. In our view, grant of injunction, in the present case, would result in irreparable injury and great injustice to first respondent which is incapable of being remedied in monetary terms, as he would be compelled to enter into a relationship involving mutual, faith, confidence and continued trust against his will. We have perused the contract in detail. The terms of the contract was expressly limited to 3 years from 30.10.2000 to 29.10.2003, unless extended by mutual agreement, and all obligations and services under the contract were to be performed during the termClause 31 (b) was also to operate only during the term, i.e. from the conclusion of the first negotiation period under clause 31(a) on 29.7.2003 till 29.10.2003. This respondent No.1 has scrupulously complied with. So long as Clause 31(b) is read as being operative during the term of the agreement, i.e. during the period from 29.7.2003 till 29.10.2003, it may be valid and enforceable. However, the moment it is sought to be enforced beyond the term and expiry of the agreement, it becomes prima facie void, as rightly held by the Division Bench. If the negative covenant or obligation under Clause 31(b) is sought to be enforced beyond the term, i.e. if it is enforced as against a contract entered into on 20.11.2003 which came into effect on 1.12.2003, then it constitutes an unlawful restriction on respondent No.1s freedom to enter into fiduciary relationships with persons of his choice, and a compulsion on him to forcibly enter into a fresh contract with the appellant even though he has fully performed the previous contract, and is, therefore, a restraint of trade which is void under Section 27 of the Indian Contract ActIn our view, Clause 31(b) of the agreement merely provides for an obligation of respondent No.1 to give an opportunity to the appellant to match the offer, if any, received by respondent No.1 from the third party. This clause does not per se restrict or prohibit respondent No.1 to enter into any contract with a third party but at best it provides the appellant with an opportunity to gain from the advertisements the appellant has made in the process of marketing and creation of the image of respondent No.1 which was gradually built up by the appellant. This clause does not restrict the right of respondent No.1 to accept any offer for endorsement, promotion, advertising or other affiliation either on his own or through any party in the event of failure of the appellant to match the offer of the third party from whom respondent No.1 would receive any offer, respondent No.1 would be free to contract with such third party. Further, the said clause does not restrict the right of respondent No.1 to appoint an agent of his choice or restrict his liberty to carry on his affairs in the manner he likes, with the persons he chooses, in the manner he thinks best. The restriction, if any, is on account of voluntary obligations undertaken by respondent No.1 and assurances made by him to the appellant wherefor, respondent No.1 cannot be permitted to renege his promises under the garb of an alleged restriction violative of Section 27 of the Contract Act. Clause 31(b) of the agreement is an independent clause which survives the expiry of the agreement and any dispute between the parties regarding the enforceability of the said clause would come under the provision of Clause 32(g) of the agreement which provides for resolution of any claim or controversy pertaining to the agreement through the process of arbitrationIn our view, no case is made out by the appellant for compelling respondent No.1 to appoint the appellant as his agent in perpetuity when the first respondent has no faith or trust in the appellant. The grant of injunction restraining respondent No.1 from acting upon the agreement entered into with the second respondent would have the effect of compelling the first respondent to be managed by the appellant, in substance and effect a decree of specific performance of an agreement of personal service, which is dependant on mutual trust, faith and confidence which, in the present case, are eroded and. In our view, the appellant can be adequately compensated in terms of money if injunction is refused. Clause 31(b) contains a restrictive covenant in restraint of trade as it clearly restricts respondent No.1 from his future liberty to deal with the persons he chooses for his endorsements, promotions, advertising or other affiliation and such a type of restriction extending beyond the tenure of the contract is clearly hit by Section 27 of the Contract Act and is void. The said covenant, as noticed earlier, curtails the liberty of respondent No.1 Zaheer Khan even though the contract has been completed to accept any offer for his endorsement, promotion etc even by dealing with any person of his ownAs already noticed, no interim relief having been granted in favour of the appellant during the past 2= years during which the contract between respondent Nos.1 and 2 has been in operation and indeed is soon to be completed, there is no cause for interference at this late stage by this Court. | 0 | 10,893 | 1,270 | ### Instruction:
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defendants to continue to employ in the fiduciary capacity of a manager and agent someone in whom he had lost confidence. 60. Clause 31 (a) and (b) is reproduced below:- "31. NEGOTIATION AND RIGHTS OF FIRST REFUSAL: (a) NEGOTIATION: During the third contract year, and in any event not later than August 1st, 2003 the Parties shall meet to commence discussions with a view to the extension of their relationship beyond the Term. For sixty (60) days thereafter, Zaheer Khan, agrees to negotiate in good faith only with Percept, and not with any third party, concerning the right after the Term to the use of his endorsement or for the arrangement contemplated by this Agreement in association with any goods or services. Only after such one hundred and eighty (180) day period from the date of the last assignment, Zaheer Khan shall have the right to negotiate with other persons, subject however to sub-clause (b). (b) FIRST REFUSAL: During the Term of the Agreement, prior to completion of the first negotiation period provided for in sub-clause (a) above, Zaheer Khan agrees not to accept any offer for his endorsement, promotion, advertising, or other affiliation with regard to any products or services. Thereafter, Zaheer Khan agrees not to accept any offer for his endorsement, promotion, advertising, or other affiliation with regard to any goods or services or for arrangement similar to the transaction hereunder without first providing Percept with written notice of such offer and all the material terms and conditions thereof and offering Percept the right to match the third party offer. Percept shall thereafter have right, exercisable by written notice to Zaheer Khan within ten(10) days of receipt, to accept Zaheer Khans offer on the same terms and conditions offered by such third party. If Percept does not accept Zaheer Khans offer, Zaheer Khan shall thereafter have the right to enter into an agreement with such third party. 61. In our view, Clause 31(b) of the agreement merely provides for an obligation of respondent No.1 to give an opportunity to the appellant to match the offer, if any, received by respondent No.1 from the third party. This clause does not per se restrict or prohibit respondent No.1 to enter into any contract with a third party but at best it provides the appellant with an opportunity to gain from the advertisements the appellant has made in the process of marketing and creation of the image of respondent No.1 which was gradually built up by the appellant. This clause does not restrict the right of respondent No.1 to accept any offer for endorsement, promotion, advertising or other affiliation either on his own or through any party in the event of failure of the appellant to match the offer of the third party from whom respondent No.1 would receive any offer, respondent No.1 would be free to contract with such third party. Further, the said clause does not restrict the right of respondent No.1 to appoint an agent of his choice or restrict his liberty to carry on his affairs in the manner he likes, with the persons he chooses, in the manner he thinks best. The restriction, if any, is on account of voluntary obligations undertaken by respondent No.1 and assurances made by him to the appellant wherefor, respondent No.1 cannot be permitted to renege his promises under the garb of an alleged restriction violative of Section 27 of the Contract Act. Clause 31(b) of the agreement is an independent clause which survives the expiry of the agreement and any dispute between the parties regarding the enforceability of the said clause would come under the provision of Clause 32(g) of the agreement which provides for resolution of any claim or controversy pertaining to the agreement through the process of arbitration. 62. Clause 32(g) of is reproduced below: "G) ARBITRATION: Any claims or controversies relating to this Agreement shall be resolved by arbitration held under the auspices and rules of the Indian Arbitration and Conciliation Act, 1996 by one arbitrator appointed in accordance with the arbitration rules. The place of arbitration shall be Mumbai. Any award of such arbitration shall be final, conclusive and legally binding, without any right of appeal and may be entered into judgment in any court of competent jurisdiction. This Agreement and all matters related hereto shall be governed by the laws of India." 63. In our view, no case is made out by the appellant for compelling respondent No.1 to appoint the appellant as his agent in perpetuity when the first respondent has no faith or trust in the appellant. The grant of injunction restraining respondent No.1 from acting upon the agreement entered into with the second respondent would have the effect of compelling the first respondent to be managed by the appellant, in substance and effect a decree of specific performance of an agreement of personal service, which is dependant on mutual trust, faith and confidence which, in the present case, are eroded and non-existent. In our view, the appellant can be adequately compensated in terms of money if injunction is refused. Clause 31(b) contains a restrictive covenant in restraint of trade as it clearly restricts respondent No.1 from his future liberty to deal with the persons he chooses for his endorsements, promotions, advertising or other affiliation and such a type of restriction extending beyond the tenure of the contract is clearly hit by Section 27 of the Contract Act and is void. The said covenant, as noticed earlier, curtails the liberty of respondent No.1 Zaheer Khan even though the contract has been completed to accept any offer for his endorsement, promotion etc even by dealing with any person of his own. 64. As already noticed, no interim relief having been granted in favour of the appellant during the past 2= years during which the contract between respondent Nos.1 and 2 has been in operation and indeed is soon to be completed, there is no cause for interference at this late stage by this Court.
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conclusion drawn by it, and in setting aside the Single Judges order. No case was made out by the appellant for compelling respondent No.1 to appoint the appellant as his agent in perpetuity. In view of the personal nature of the service and relationship between the contracting parties, a contract of agency/management such as the one entered into between the appellant and respondent No.1 is incapable of specific performance and to enforce the performance thereof would be inequitable. Likewise, grant of injunction restraining first respondent would have the effect of compelling the first respondent to be managed by the appellant, in substance and effect a decree of specific performance of an agreement of fiduciary or personal character or service, which is dependent on mutual trust, faith and confidenceThe appellant can be adequately compensated in terms of money if injunction is refused. In our view, grant of injunction, in the present case, would result in irreparable injury and great injustice to first respondent which is incapable of being remedied in monetary terms, as he would be compelled to enter into a relationship involving mutual, faith, confidence and continued trust against his will. We have perused the contract in detail. The terms of the contract was expressly limited to 3 years from 30.10.2000 to 29.10.2003, unless extended by mutual agreement, and all obligations and services under the contract were to be performed during the termClause 31 (b) was also to operate only during the term, i.e. from the conclusion of the first negotiation period under clause 31(a) on 29.7.2003 till 29.10.2003. This respondent No.1 has scrupulously complied with. So long as Clause 31(b) is read as being operative during the term of the agreement, i.e. during the period from 29.7.2003 till 29.10.2003, it may be valid and enforceable. However, the moment it is sought to be enforced beyond the term and expiry of the agreement, it becomes prima facie void, as rightly held by the Division Bench. If the negative covenant or obligation under Clause 31(b) is sought to be enforced beyond the term, i.e. if it is enforced as against a contract entered into on 20.11.2003 which came into effect on 1.12.2003, then it constitutes an unlawful restriction on respondent No.1s freedom to enter into fiduciary relationships with persons of his choice, and a compulsion on him to forcibly enter into a fresh contract with the appellant even though he has fully performed the previous contract, and is, therefore, a restraint of trade which is void under Section 27 of the Indian Contract ActIn our view, Clause 31(b) of the agreement merely provides for an obligation of respondent No.1 to give an opportunity to the appellant to match the offer, if any, received by respondent No.1 from the third party. This clause does not per se restrict or prohibit respondent No.1 to enter into any contract with a third party but at best it provides the appellant with an opportunity to gain from the advertisements the appellant has made in the process of marketing and creation of the image of respondent No.1 which was gradually built up by the appellant. This clause does not restrict the right of respondent No.1 to accept any offer for endorsement, promotion, advertising or other affiliation either on his own or through any party in the event of failure of the appellant to match the offer of the third party from whom respondent No.1 would receive any offer, respondent No.1 would be free to contract with such third party. Further, the said clause does not restrict the right of respondent No.1 to appoint an agent of his choice or restrict his liberty to carry on his affairs in the manner he likes, with the persons he chooses, in the manner he thinks best. The restriction, if any, is on account of voluntary obligations undertaken by respondent No.1 and assurances made by him to the appellant wherefor, respondent No.1 cannot be permitted to renege his promises under the garb of an alleged restriction violative of Section 27 of the Contract Act. Clause 31(b) of the agreement is an independent clause which survives the expiry of the agreement and any dispute between the parties regarding the enforceability of the said clause would come under the provision of Clause 32(g) of the agreement which provides for resolution of any claim or controversy pertaining to the agreement through the process of arbitrationIn our view, no case is made out by the appellant for compelling respondent No.1 to appoint the appellant as his agent in perpetuity when the first respondent has no faith or trust in the appellant. The grant of injunction restraining respondent No.1 from acting upon the agreement entered into with the second respondent would have the effect of compelling the first respondent to be managed by the appellant, in substance and effect a decree of specific performance of an agreement of personal service, which is dependant on mutual trust, faith and confidence which, in the present case, are eroded and. In our view, the appellant can be adequately compensated in terms of money if injunction is refused. Clause 31(b) contains a restrictive covenant in restraint of trade as it clearly restricts respondent No.1 from his future liberty to deal with the persons he chooses for his endorsements, promotions, advertising or other affiliation and such a type of restriction extending beyond the tenure of the contract is clearly hit by Section 27 of the Contract Act and is void. The said covenant, as noticed earlier, curtails the liberty of respondent No.1 Zaheer Khan even though the contract has been completed to accept any offer for his endorsement, promotion etc even by dealing with any person of his ownAs already noticed, no interim relief having been granted in favour of the appellant during the past 2= years during which the contract between respondent Nos.1 and 2 has been in operation and indeed is soon to be completed, there is no cause for interference at this late stage by this Court.
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Maharashtra State Financial Corporation Vs. Jaycee Drugs and Pharmaceuticals Private Limited & Others | for attachment or sale of property as contained in the Code in its entirety and to achieve this purpose the words "as far as practicable" were used in the sub-section. To us it appears that in the absence of any provision such as sub-section (8) of Section 32 applying the manner provided in the Code for the execution of a decree against a surety only "as far as practicable" the entire provision contained in this behalf in the Code shall be applicable. This would be so in view of the use of the expression "any other law for the time being applicable to an industrial concern". That the Code is applicable to an industrial concern also is not in dispute and cannot be doubted 26. We may now state our reasons for holding that even if Section 46-B of the Act was not there the provisions of the Code for the execution of a decree against a surety who had given only personal guarantee would, in the absence of any provision to the contrary in the Act, be applicable. In view of the decision of this Court in Central Talkies Ltd., Kanpur v. Dwarka Prasad ( 1961 (3) SCR 495 : 1961 AIR(SC) 606), where it was held that a persona designate is a person selected as an individual in his private capacity, and not in his capacity as filling a particular character or office, since the term used in Section 31(1) of the Act is "District Judge" it cannot be doubted that the District Judge is not a persona designate but a court of ordinary civil jurisdiction while exercising jurisdiction under Sections 31 and 32 of the Act. In National Sewing Thread Co. Ltd. v. James Chadwick & Bros. Ltd. 1953 SCR 1028 : 1953 AIR(SC) 357) while repelling the objection that an appeal under the Letters Patent against the judgment of a Single Judge passed in an appeal against the decision of the Registrar under Section 76(1) of the Trade Marks Act, 1940 was not maintainable it was held at pages 1033-34 of the Report : (SCR pp. 1033-34) "Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that court and in accordance with the provision of the charter under which that court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court. This rule was very succinctly stated by Viscount Haldane L. C. in National Telephone Co. Ltd. v. Postmaster-General 1913 AC 546 : 82 LJKB 1197), in these terms :-When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decision likewise attaches. The same view was expressed by their Lordships of the Privy Council in Adaikappa Chettiar v. R. Chandrasekhara Thevar ((1947) 74 IA 264 : 1948 AIR(PC) 12), wherein it was said Were a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal. Again in Secretary of State for India v. Chellikani Rama Rao 1916 AIR(PC) 21 : 1916 (39) ILR(Mad) 617), when dealing with the case under the Madras Forest Act their Lordships observed as follows It was contended on behalf of the appellant that all further proceedings in courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships opinion this objection is not well founded. Their view is that when proceedings of this character reach the District Court, that court is appealed to as one of the ordinary courts of the country, with regard to whose procedure orders, and decrees the ordinary rules of the Civil Procedure Code apply. Though the facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case. Section 76 of the Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by Section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a Single Judge, his judgment becomes subject to appeal under clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act." 27. And it is in view of this decision that we are of the opinion that the provisions of the Code would have, even in the absence of Section 46-B of the Act, been attracted in the matter of enforcing the liability of a surety. In view of the foregoing discussion, the finding of the High Court even on this point cannot be sustained. Since, however, the High court has not made a determination of the liability of the sureties as contemplated by sub-section (6) of Section 32 of the Act, the matter has to be sent back to it for doing so and thereafter to pass an order as contemplated by clause (da) of sub-section (7) of Section 32 of the Act and to proceed to enforce the liability so determined against the sureties | 1[ds]13. Having extracted the relevant statutory provisions we now take up the question of jurisdiction. Sub-Section (1) of Section 31 of the Act contemplates making of the petition thereunder "to the District Judge within the limits of whose jurisdiction the industrial concern carries on the whole or a substantial part of its business". A petition so made is to be decided in the manner provided by Section 32 of the Act, sub-section (11) whereof inter alia provides that the functions of a District Judge under the said section shall be exercisable, in a presidency town, where there is a city civil court having jurisdiction, by a judge of that court and in the absence of such court, by the HighHaving given our anxious consideration to the question we are inclined to agree with the submission made by learned counsel for the appellant. The three decisions of this Court referred to above and relied on by learned counsel for the respondents were not cases relating to the enforcement of a liability of a surety made possible by the amendments by Act 43 of 1985. In our opinion, what has been laid down therein does not in any way militate against ascertaining in monetary terms value or the extent of the liability of a surety, which is sought to be enforced and there is intrinsic evidence in Sections 31 and 32 themselves to support this view. Sub-section (2) of Section 31 makes it obligatory to state the "extent of the liability". Sub-section (1) of Section 32 refers to "an amount equivalent in value to the out stand liability". Sub-section (1-A) of Section 32 contemplates notice to the surety to show cause "why his liability" should not be enforce. Sub-section (6) of Section 32 contemplates investigation and determination of "the claim" of the Financial Corporation which is to be recovered. If the application under Section 31(1) is made before a District Judge, there is no difficulty because he has unlimited pecuniary jurisdiction. The difficulty arises, as in the instance case, when such application is to be made either before the city civil court or the High Court as contemplate day sub-section (11) of Section 32. In our opinion, the extent of the liability stated in the application as contemplated by sub-section (2) of Section 31 of the Act would represent the value of the claim of the Corporation and if such value is up to Rs. 50, 000 the application would lie in the city civil court and if it is more than that amount it would lie in the High Court. This interpretation would give meaning and relevance to the words "having jurisdiction" used in sub-section (11) of Section 32. A different interpretation would render superfluous or otiose not only the words "having jurisdiction" but also the words "and in the absence of such court, be the High Court" occurring in the said sub-section (11) inasmuch as in a presidency town, in terms of territorial jurisdiction, the jurisdiction of the city civil court and the High Court is co-terminus. That it is so is clear from Section 3 of the Bombay City Civil Court Act and the definition of the term "presidency town" contained in Section 3(44) of the General Clauses Act, 1897 according to which "presidency town" shall mean the local limits for the time being of the ordinary original civil jurisdiction of the High Court of Judicature at Calcutta, Madras or Bombay, as the case may be16. It is a settled rule of interpretation of statutes that if the language and words used are plain and unambiguous, full effect must be given to them as they stand and in the grab of finding out the intention of the legislature no words should be added thereto or substracted therefrom. Likewise, it is again a settled rule of interpretation that statutory provisions should be construed in a manner which subserves the purpose of the enactment and does not defeat it and that no part thereof is rendered surplus or otiose. The aforesaid interpretation of sub-section (11) of Section 32 of the Act is not only in conformity with the rule of interpretation referred to above, it also does not militate in any way with the concept of an application under Section 31(1) of the Act, not being a plaint in a suit for recovery ofIn the instant case the extent of the liability of the surety being more than Rs. 50, 000, the application could only have been filed and was rightly filed in the High Court and the finding in the judgment under appeal to the contrary for holding that the High Court had no jurisdiction to entertain the application cannot beAnd it is in view of this decision that we are of the opinion that the provisions of the Code would have, even in the absence of Section 46-B of the Act, been attracted in the matter of enforcing the liability of a surety. In view of the foregoing discussion, the finding of the High Court even on this point cannot be sustained. Since, however, the High court has not made a determination of the liability of the sureties as contemplated by sub-section (6) of Section 32 of the Act, the matter has to be sent back to it for doing so and thereafter to pass an order as contemplated by clause (da) of sub-section (7) of Section 32 of the Act and to proceed to enforce the liability so determined against the sureties | 1 | 8,929 | 1,029 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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for attachment or sale of property as contained in the Code in its entirety and to achieve this purpose the words "as far as practicable" were used in the sub-section. To us it appears that in the absence of any provision such as sub-section (8) of Section 32 applying the manner provided in the Code for the execution of a decree against a surety only "as far as practicable" the entire provision contained in this behalf in the Code shall be applicable. This would be so in view of the use of the expression "any other law for the time being applicable to an industrial concern". That the Code is applicable to an industrial concern also is not in dispute and cannot be doubted 26. We may now state our reasons for holding that even if Section 46-B of the Act was not there the provisions of the Code for the execution of a decree against a surety who had given only personal guarantee would, in the absence of any provision to the contrary in the Act, be applicable. In view of the decision of this Court in Central Talkies Ltd., Kanpur v. Dwarka Prasad ( 1961 (3) SCR 495 : 1961 AIR(SC) 606), where it was held that a persona designate is a person selected as an individual in his private capacity, and not in his capacity as filling a particular character or office, since the term used in Section 31(1) of the Act is "District Judge" it cannot be doubted that the District Judge is not a persona designate but a court of ordinary civil jurisdiction while exercising jurisdiction under Sections 31 and 32 of the Act. In National Sewing Thread Co. Ltd. v. James Chadwick & Bros. Ltd. 1953 SCR 1028 : 1953 AIR(SC) 357) while repelling the objection that an appeal under the Letters Patent against the judgment of a Single Judge passed in an appeal against the decision of the Registrar under Section 76(1) of the Trade Marks Act, 1940 was not maintainable it was held at pages 1033-34 of the Report : (SCR pp. 1033-34) "Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that court and in accordance with the provision of the charter under which that court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court. This rule was very succinctly stated by Viscount Haldane L. C. in National Telephone Co. Ltd. v. Postmaster-General 1913 AC 546 : 82 LJKB 1197), in these terms :-When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decision likewise attaches. The same view was expressed by their Lordships of the Privy Council in Adaikappa Chettiar v. R. Chandrasekhara Thevar ((1947) 74 IA 264 : 1948 AIR(PC) 12), wherein it was said Were a legal right is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal. Again in Secretary of State for India v. Chellikani Rama Rao 1916 AIR(PC) 21 : 1916 (39) ILR(Mad) 617), when dealing with the case under the Madras Forest Act their Lordships observed as follows It was contended on behalf of the appellant that all further proceedings in courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships opinion this objection is not well founded. Their view is that when proceedings of this character reach the District Court, that court is appealed to as one of the ordinary courts of the country, with regard to whose procedure orders, and decrees the ordinary rules of the Civil Procedure Code apply. Though the facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case. Section 76 of the Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by Section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a Single Judge, his judgment becomes subject to appeal under clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act." 27. And it is in view of this decision that we are of the opinion that the provisions of the Code would have, even in the absence of Section 46-B of the Act, been attracted in the matter of enforcing the liability of a surety. In view of the foregoing discussion, the finding of the High Court even on this point cannot be sustained. Since, however, the High court has not made a determination of the liability of the sureties as contemplated by sub-section (6) of Section 32 of the Act, the matter has to be sent back to it for doing so and thereafter to pass an order as contemplated by clause (da) of sub-section (7) of Section 32 of the Act and to proceed to enforce the liability so determined against the sureties
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13. Having extracted the relevant statutory provisions we now take up the question of jurisdiction. Sub-Section (1) of Section 31 of the Act contemplates making of the petition thereunder "to the District Judge within the limits of whose jurisdiction the industrial concern carries on the whole or a substantial part of its business". A petition so made is to be decided in the manner provided by Section 32 of the Act, sub-section (11) whereof inter alia provides that the functions of a District Judge under the said section shall be exercisable, in a presidency town, where there is a city civil court having jurisdiction, by a judge of that court and in the absence of such court, by the HighHaving given our anxious consideration to the question we are inclined to agree with the submission made by learned counsel for the appellant. The three decisions of this Court referred to above and relied on by learned counsel for the respondents were not cases relating to the enforcement of a liability of a surety made possible by the amendments by Act 43 of 1985. In our opinion, what has been laid down therein does not in any way militate against ascertaining in monetary terms value or the extent of the liability of a surety, which is sought to be enforced and there is intrinsic evidence in Sections 31 and 32 themselves to support this view. Sub-section (2) of Section 31 makes it obligatory to state the "extent of the liability". Sub-section (1) of Section 32 refers to "an amount equivalent in value to the out stand liability". Sub-section (1-A) of Section 32 contemplates notice to the surety to show cause "why his liability" should not be enforce. Sub-section (6) of Section 32 contemplates investigation and determination of "the claim" of the Financial Corporation which is to be recovered. If the application under Section 31(1) is made before a District Judge, there is no difficulty because he has unlimited pecuniary jurisdiction. The difficulty arises, as in the instance case, when such application is to be made either before the city civil court or the High Court as contemplate day sub-section (11) of Section 32. In our opinion, the extent of the liability stated in the application as contemplated by sub-section (2) of Section 31 of the Act would represent the value of the claim of the Corporation and if such value is up to Rs. 50, 000 the application would lie in the city civil court and if it is more than that amount it would lie in the High Court. This interpretation would give meaning and relevance to the words "having jurisdiction" used in sub-section (11) of Section 32. A different interpretation would render superfluous or otiose not only the words "having jurisdiction" but also the words "and in the absence of such court, be the High Court" occurring in the said sub-section (11) inasmuch as in a presidency town, in terms of territorial jurisdiction, the jurisdiction of the city civil court and the High Court is co-terminus. That it is so is clear from Section 3 of the Bombay City Civil Court Act and the definition of the term "presidency town" contained in Section 3(44) of the General Clauses Act, 1897 according to which "presidency town" shall mean the local limits for the time being of the ordinary original civil jurisdiction of the High Court of Judicature at Calcutta, Madras or Bombay, as the case may be16. It is a settled rule of interpretation of statutes that if the language and words used are plain and unambiguous, full effect must be given to them as they stand and in the grab of finding out the intention of the legislature no words should be added thereto or substracted therefrom. Likewise, it is again a settled rule of interpretation that statutory provisions should be construed in a manner which subserves the purpose of the enactment and does not defeat it and that no part thereof is rendered surplus or otiose. The aforesaid interpretation of sub-section (11) of Section 32 of the Act is not only in conformity with the rule of interpretation referred to above, it also does not militate in any way with the concept of an application under Section 31(1) of the Act, not being a plaint in a suit for recovery ofIn the instant case the extent of the liability of the surety being more than Rs. 50, 000, the application could only have been filed and was rightly filed in the High Court and the finding in the judgment under appeal to the contrary for holding that the High Court had no jurisdiction to entertain the application cannot beAnd it is in view of this decision that we are of the opinion that the provisions of the Code would have, even in the absence of Section 46-B of the Act, been attracted in the matter of enforcing the liability of a surety. In view of the foregoing discussion, the finding of the High Court even on this point cannot be sustained. Since, however, the High court has not made a determination of the liability of the sureties as contemplated by sub-section (6) of Section 32 of the Act, the matter has to be sent back to it for doing so and thereafter to pass an order as contemplated by clause (da) of sub-section (7) of Section 32 of the Act and to proceed to enforce the liability so determined against the sureties
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JOYDEEP MAJUMDAR Vs. BHARTI JAISWAL MAJUMDAR | On the other hand, the respondent in her case for restitution of conjugal rights contended that the husband without any reasonable cause had deserted her and accordingly she pleaded for direction to the appellant, for resumption of matrimonial life. 6. The Family Court at Dehradun analogously considered both cases. The learned judge applied his mind to the evidence led by the parties, the documents on record and the arguments advanced by the respective counsel and gave a finding that the respondent had failed to establish her allegation of adultery against the husband. It was further found that the respondent had subjected the appellant to mental cruelty with her complaints to the Army and other authorities. Consequently, the Court allowed the appellants suit for dissolution of marriage and simultaneously dismissed the respondents petition for restitution of conjugal rights. 7. The aggrieved parties then filed respective First Appeals before the Uttarakhand High Court. On consideration of the pleadings and the issues framed by the trial Court, the High Court noted that cruelty is the core issue in the dispute. The Court then proceeded to examine whether the wife with her complaints to various authorities including the Armys top brass, had treated the appellant with cruelty to justify his plea for dissolution of marriage. While it was found that the wife did write to various authorities commenting on the appellants character and conduct, the Division Bench opined that those cannot be construed as cruelty since no court has concluded that those allegations were false or fabricated. According to the Court, the conduct of the parties against each other would at best be squabbles of ordinary middle class married life. Accordingly, the High Court set aside the decree for dissolution of marriage and allowed the respondents suit for restitution of conjugal rights, under the impugned judgment. 8. Challenging the High Courts decision, Mr. Gopal Sankaranarayanan, the learned Senior Counsel highlights that the respondent had filed a series of complaints against the appellant before the superior officers in the Army upto the level of the Chief of Army Staff and to other authorities and these complaints have irreparably damaged the reputation and mental peace of the appellant. The appellant cannot therefore be compelled to resume matrimonial life with the respondent, in the face of such unfounded allegations and cruel treatment. Moreover, matrimonial life lasted only for few months and the couple have been separated since 15.9.2007 and after all these years, restitution would not be justified or feasible. 9. Per contra, Mr. Ahmad Ibrahim, the learned counsel submits that the respondent is keen to resume her matrimonial life with the appellant. According to the counsel, the respondent wrote letters and filed complaints only to assert her legal right as the married wife of the appellant and those communications should therefore be understood as efforts made by the wife to preserve the marital relationship. It is further contended that only because the appellant had filed the divorce case before the Vishakhapatnam Court and had obtained an ex-parte order, the respondent was constrained to write to various authorities to assert her right as the legally wedded wife of the appellant. 10. For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse. The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party. In Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511 , this Court gave illustrative cases where inference of mental cruelty could be drawn even while emphasizing that no uniform standard can be laid down and each case will have to be decided on its own facts. 11. The materials in the present case reveal that the respondent had made several defamatory complaints to the appellants superiors in the Army for which, a Court of inquiry was held by the Army authorities against the appellant. Primarily for those, the appellants career progress got affected. The Respondent was also making complaints to other authorities, such as, the State Commission for Women and has posted defamatory materials on other platforms. The net outcome of above is that the appellants career and reputation had suffered. 12. When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent, the legal consequences must follow and those cannot be prevented only because, no Court has determined that the allegations were false. The High Court however felt that without any definite finding on the credibility of the wifes allegation, the wronged spouse would be disentitled to relief. This is not found to be the correct way to deal with the issue. 13. Proceeding with the above understanding, the question which requires to be answered here is whether the conduct of the respondent would fall within the realm of mental cruelty. Here the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant. When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party. 14. The explanation of the wife that she made those complaints in order to protect the matrimonial ties would not in our view, justify the persistent effort made by her to undermine the dignity and reputation of the appellant. In circumstances like this, the wronged party cannot be expected to continue with the matrimonial relationship and there is enough justification for him to seek separation. | 0[ds]10. For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse. The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party. In Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511 , this Court gave illustrative cases where inference of mental cruelty could be drawn even while emphasizing that no uniform standard can be laid down and each case will have to be decided on its own facts.11. The materials in the present case reveal that the respondent had made several defamatory complaints to the appellants superiors in the Army for which, a Court of inquiry was held by the Army authorities against the appellant. Primarily for those, the appellants career progress got affected. The Respondent was also making complaints to other authorities, such as, the State Commission for Women and has posted defamatory materials on other platforms. The net outcome of above is that the appellants career and reputation had suffered.12. When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent, the legal consequences must follow and those cannot be prevented only because, no Court has determined that the allegations were false. The High Court however felt that without any definite finding on the credibility of the wifes allegation, the wronged spouse would be disentitled to relief. This is not found to be the correct way to deal with the issue.13. Proceeding with the above understanding, the question which requires to be answered here is whether the conduct of the respondent would fall within the realm of mental cruelty. Here the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant. When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party.14. The explanation of the wife that she made those complaints in order to protect the matrimonial ties would not in our view, justify the persistent effort made by her to undermine the dignity and reputation of the appellant. In circumstances like this, the wronged party cannot be expected to continue with the matrimonial relationship and there is enough justification for him to seek separation. | 0 | 1,535 | 516 | ### 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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On the other hand, the respondent in her case for restitution of conjugal rights contended that the husband without any reasonable cause had deserted her and accordingly she pleaded for direction to the appellant, for resumption of matrimonial life. 6. The Family Court at Dehradun analogously considered both cases. The learned judge applied his mind to the evidence led by the parties, the documents on record and the arguments advanced by the respective counsel and gave a finding that the respondent had failed to establish her allegation of adultery against the husband. It was further found that the respondent had subjected the appellant to mental cruelty with her complaints to the Army and other authorities. Consequently, the Court allowed the appellants suit for dissolution of marriage and simultaneously dismissed the respondents petition for restitution of conjugal rights. 7. The aggrieved parties then filed respective First Appeals before the Uttarakhand High Court. On consideration of the pleadings and the issues framed by the trial Court, the High Court noted that cruelty is the core issue in the dispute. The Court then proceeded to examine whether the wife with her complaints to various authorities including the Armys top brass, had treated the appellant with cruelty to justify his plea for dissolution of marriage. While it was found that the wife did write to various authorities commenting on the appellants character and conduct, the Division Bench opined that those cannot be construed as cruelty since no court has concluded that those allegations were false or fabricated. According to the Court, the conduct of the parties against each other would at best be squabbles of ordinary middle class married life. Accordingly, the High Court set aside the decree for dissolution of marriage and allowed the respondents suit for restitution of conjugal rights, under the impugned judgment. 8. Challenging the High Courts decision, Mr. Gopal Sankaranarayanan, the learned Senior Counsel highlights that the respondent had filed a series of complaints against the appellant before the superior officers in the Army upto the level of the Chief of Army Staff and to other authorities and these complaints have irreparably damaged the reputation and mental peace of the appellant. The appellant cannot therefore be compelled to resume matrimonial life with the respondent, in the face of such unfounded allegations and cruel treatment. Moreover, matrimonial life lasted only for few months and the couple have been separated since 15.9.2007 and after all these years, restitution would not be justified or feasible. 9. Per contra, Mr. Ahmad Ibrahim, the learned counsel submits that the respondent is keen to resume her matrimonial life with the appellant. According to the counsel, the respondent wrote letters and filed complaints only to assert her legal right as the married wife of the appellant and those communications should therefore be understood as efforts made by the wife to preserve the marital relationship. It is further contended that only because the appellant had filed the divorce case before the Vishakhapatnam Court and had obtained an ex-parte order, the respondent was constrained to write to various authorities to assert her right as the legally wedded wife of the appellant. 10. For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse. The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party. In Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511 , this Court gave illustrative cases where inference of mental cruelty could be drawn even while emphasizing that no uniform standard can be laid down and each case will have to be decided on its own facts. 11. The materials in the present case reveal that the respondent had made several defamatory complaints to the appellants superiors in the Army for which, a Court of inquiry was held by the Army authorities against the appellant. Primarily for those, the appellants career progress got affected. The Respondent was also making complaints to other authorities, such as, the State Commission for Women and has posted defamatory materials on other platforms. The net outcome of above is that the appellants career and reputation had suffered. 12. When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent, the legal consequences must follow and those cannot be prevented only because, no Court has determined that the allegations were false. The High Court however felt that without any definite finding on the credibility of the wifes allegation, the wronged spouse would be disentitled to relief. This is not found to be the correct way to deal with the issue. 13. Proceeding with the above understanding, the question which requires to be answered here is whether the conduct of the respondent would fall within the realm of mental cruelty. Here the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant. When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party. 14. The explanation of the wife that she made those complaints in order to protect the matrimonial ties would not in our view, justify the persistent effort made by her to undermine the dignity and reputation of the appellant. In circumstances like this, the wronged party cannot be expected to continue with the matrimonial relationship and there is enough justification for him to seek separation.
### Response:
0
### Explanation:
10. For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse. The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party. In Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511 , this Court gave illustrative cases where inference of mental cruelty could be drawn even while emphasizing that no uniform standard can be laid down and each case will have to be decided on its own facts.11. The materials in the present case reveal that the respondent had made several defamatory complaints to the appellants superiors in the Army for which, a Court of inquiry was held by the Army authorities against the appellant. Primarily for those, the appellants career progress got affected. The Respondent was also making complaints to other authorities, such as, the State Commission for Women and has posted defamatory materials on other platforms. The net outcome of above is that the appellants career and reputation had suffered.12. When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent, the legal consequences must follow and those cannot be prevented only because, no Court has determined that the allegations were false. The High Court however felt that without any definite finding on the credibility of the wifes allegation, the wronged spouse would be disentitled to relief. This is not found to be the correct way to deal with the issue.13. Proceeding with the above understanding, the question which requires to be answered here is whether the conduct of the respondent would fall within the realm of mental cruelty. Here the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant. When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party.14. The explanation of the wife that she made those complaints in order to protect the matrimonial ties would not in our view, justify the persistent effort made by her to undermine the dignity and reputation of the appellant. In circumstances like this, the wronged party cannot be expected to continue with the matrimonial relationship and there is enough justification for him to seek separation.
|
Union of India Etc Vs. K. R. Tahiliani and Another | KRISHNA IYER, J.1. Two government servants have been retired from service in exercise of the powers vested in the Central Government by Rule 56 (j) (i) of the Fundamental Rules. They have successfully challenged compulsory retirement by petitions under Article 226 of the Constitution and the Union of India has come up in appeal to this Court by special leave. The sole question to be decided is whether a government servant officiating in a Class I or Class II service or post can be retired compulsorily by exercising the power under Rule 56 (j) (i) after he has attained the age of 50 years.2. The biographical details of these two officials in government service need not detain us because the facts are admitted and the only point at issue is whether Rule 56( j) (i) will apply to a government servant who is only officiating in a Class I or Class II post or service. We agree with the High Court that on a correct interpretation of that Rule, an officiating hand will not be caught in the claws of the compulsory retirement provision. The reasons may briefly be stated by us now although these have been elaborately set out by the High Court (in the Delhi case).3. We may extract the relevant part of the Rule at this stage:"56. ( j) Notwithstanding anything contained in this rule the appropriate authority shall, if it is of the opinion that it is in public interest to do so have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice.(i) If he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty five years after he has attained the age of fifty years." A Government servant ordinarily holds service at the pleasure of the State but in our Republic where the rule of law prevail s even pleasure is canalised by rules. Viewed from this perspective security of tenure is a value in itself. In Government jurisprudence it is, however, open to the State to make rules under the proviso to Article 309; and Rule 56 (j) is one such rule. Assuming as we do, the validity of the said Rule, the question of construction causes little difficulty once the scheme of the provision is understood correctly."4. An officiating hand has no right to the post and is perhaps a fleeting bird who may have to go back to the substantive post from which he has been promoted on an officiating basis. What is more to the point, a person who has been appointed de novo may begin his service on an officiating basis or on a temporary basis and it is obvious that he has no right to the post and cannot be strictly said to be in that service or post as a member of that service. In short, an officiating Government servant does not really belong to Class I or Class II service until he acquires a right thereon. Even viewed closely and meticulously, the structure of the clause, namely, "if he is in Class I or Class II services or post", emphasises the nature of the service or post vis-a-vis the Government servant concerned. We need not go into the semantic shapes, lexical niceties or linguistic nuances but only go through the meaning and purpose of the provision. When a Government servant belonging to a Class I or Class II service or post on a regular basis has to be retired compulsorily, Rule 56 (j) (i) comes to the rescue of the Government. But if he is only a temporary hand, he has no right to the post and can always be reverted to the post, if any, on which he has a lien. Similar is the position of an officiating hand. Thus, we have reached an inevitable conclusion that Rule 56 (j) (i) is meant to cover only those who are in a post on a regular basis, i.e., in a substantive capacity, and not on an officiating basis only.In passing, we may make it clear that although the Rule vests an absolute right in the appropriate authority to retire a Government servant in public interest, yet absolutism and arbitrariness are contrary to the scheme of the rules we are concerned with. We, therefore emphasise the fact that even while exercising power under Rule 56 (j) (i) the State will take care not to act arbitrarily, misguided by the absolute expression in the Rule.5. | 0[ds]A Government servant ordinarily holds service at the pleasure of the State but in our Republic where the rule of law prevail s even pleasure is canalised by rules. Viewed from this perspective security of tenure is a value in itself. In Government jurisprudence it is, however, open to the State to make rules under the proviso to Article 309; and Rule 56 (j) is one such rule. Assuming as we do, the validity of the said Rule, the question of construction causes little difficulty once the scheme of the provision is understoodofficiating hand has no right to the post and is perhaps a fleeting bird who may have to go back to the substantive post from which he has been promoted on an officiating basis. What is more to the point, a person who has been appointed de novo may begin his service on an officiating basis or on a temporary basis and it is obvious that he has no right to the post and cannot be strictly said to be in that service or post as a member of that service. In short, an officiating Government servant does not really belong to Class I or Class II service until he acquires a right thereon. Even viewed closely and meticulously, the structure of the clause, namely, "if he is in Class I or Class II services or post", emphasises the nature of the service or post vis-a-vis the Government servant concerned. We need not go into the semantic shapes, lexical niceties or linguistic nuances but only go through the meaning and purpose of the provision. When a Government servant belonging to a Class I or Class II service or post on a regular basis has to be retired compulsorily, Rule 56 (j) (i) comes to the rescue of the Government. But if he is only a temporary hand, he has no right to the post and can always be reverted to the post, if any, on which he has a lien. Similar is the position of an officiating hand. Thus, we have reached an inevitable conclusion that Rule 56 (j) (i) is meant to cover only those who are in a post on a regular basis, i.e., in a substantive capacity, and not on an officiating basis only.In passing, we may make it clear that although the Rule vests an absolute right in the appropriate authority to retire a Government servant in public interest, yet absolutism and arbitrariness are contrary to the scheme of the rules we are concerned with. We, therefore emphasise the fact that even while exercising power under Rule 56 (j) (i) the State will take care not to act arbitrarily, misguided by the absolute expression in the Rule. | 0 | 862 | 511 | ### 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:
KRISHNA IYER, J.1. Two government servants have been retired from service in exercise of the powers vested in the Central Government by Rule 56 (j) (i) of the Fundamental Rules. They have successfully challenged compulsory retirement by petitions under Article 226 of the Constitution and the Union of India has come up in appeal to this Court by special leave. The sole question to be decided is whether a government servant officiating in a Class I or Class II service or post can be retired compulsorily by exercising the power under Rule 56 (j) (i) after he has attained the age of 50 years.2. The biographical details of these two officials in government service need not detain us because the facts are admitted and the only point at issue is whether Rule 56( j) (i) will apply to a government servant who is only officiating in a Class I or Class II post or service. We agree with the High Court that on a correct interpretation of that Rule, an officiating hand will not be caught in the claws of the compulsory retirement provision. The reasons may briefly be stated by us now although these have been elaborately set out by the High Court (in the Delhi case).3. We may extract the relevant part of the Rule at this stage:"56. ( j) Notwithstanding anything contained in this rule the appropriate authority shall, if it is of the opinion that it is in public interest to do so have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice.(i) If he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty five years after he has attained the age of fifty years." A Government servant ordinarily holds service at the pleasure of the State but in our Republic where the rule of law prevail s even pleasure is canalised by rules. Viewed from this perspective security of tenure is a value in itself. In Government jurisprudence it is, however, open to the State to make rules under the proviso to Article 309; and Rule 56 (j) is one such rule. Assuming as we do, the validity of the said Rule, the question of construction causes little difficulty once the scheme of the provision is understood correctly."4. An officiating hand has no right to the post and is perhaps a fleeting bird who may have to go back to the substantive post from which he has been promoted on an officiating basis. What is more to the point, a person who has been appointed de novo may begin his service on an officiating basis or on a temporary basis and it is obvious that he has no right to the post and cannot be strictly said to be in that service or post as a member of that service. In short, an officiating Government servant does not really belong to Class I or Class II service until he acquires a right thereon. Even viewed closely and meticulously, the structure of the clause, namely, "if he is in Class I or Class II services or post", emphasises the nature of the service or post vis-a-vis the Government servant concerned. We need not go into the semantic shapes, lexical niceties or linguistic nuances but only go through the meaning and purpose of the provision. When a Government servant belonging to a Class I or Class II service or post on a regular basis has to be retired compulsorily, Rule 56 (j) (i) comes to the rescue of the Government. But if he is only a temporary hand, he has no right to the post and can always be reverted to the post, if any, on which he has a lien. Similar is the position of an officiating hand. Thus, we have reached an inevitable conclusion that Rule 56 (j) (i) is meant to cover only those who are in a post on a regular basis, i.e., in a substantive capacity, and not on an officiating basis only.In passing, we may make it clear that although the Rule vests an absolute right in the appropriate authority to retire a Government servant in public interest, yet absolutism and arbitrariness are contrary to the scheme of the rules we are concerned with. We, therefore emphasise the fact that even while exercising power under Rule 56 (j) (i) the State will take care not to act arbitrarily, misguided by the absolute expression in the Rule.5.
### Response:
0
### Explanation:
A Government servant ordinarily holds service at the pleasure of the State but in our Republic where the rule of law prevail s even pleasure is canalised by rules. Viewed from this perspective security of tenure is a value in itself. In Government jurisprudence it is, however, open to the State to make rules under the proviso to Article 309; and Rule 56 (j) is one such rule. Assuming as we do, the validity of the said Rule, the question of construction causes little difficulty once the scheme of the provision is understoodofficiating hand has no right to the post and is perhaps a fleeting bird who may have to go back to the substantive post from which he has been promoted on an officiating basis. What is more to the point, a person who has been appointed de novo may begin his service on an officiating basis or on a temporary basis and it is obvious that he has no right to the post and cannot be strictly said to be in that service or post as a member of that service. In short, an officiating Government servant does not really belong to Class I or Class II service until he acquires a right thereon. Even viewed closely and meticulously, the structure of the clause, namely, "if he is in Class I or Class II services or post", emphasises the nature of the service or post vis-a-vis the Government servant concerned. We need not go into the semantic shapes, lexical niceties or linguistic nuances but only go through the meaning and purpose of the provision. When a Government servant belonging to a Class I or Class II service or post on a regular basis has to be retired compulsorily, Rule 56 (j) (i) comes to the rescue of the Government. But if he is only a temporary hand, he has no right to the post and can always be reverted to the post, if any, on which he has a lien. Similar is the position of an officiating hand. Thus, we have reached an inevitable conclusion that Rule 56 (j) (i) is meant to cover only those who are in a post on a regular basis, i.e., in a substantive capacity, and not on an officiating basis only.In passing, we may make it clear that although the Rule vests an absolute right in the appropriate authority to retire a Government servant in public interest, yet absolutism and arbitrariness are contrary to the scheme of the rules we are concerned with. We, therefore emphasise the fact that even while exercising power under Rule 56 (j) (i) the State will take care not to act arbitrarily, misguided by the absolute expression in the Rule.
|
Virendra Pal Singh and Others Vs. District Assistant Registrar, Cooperative Societies, Etah and Another | cooperative societies, when otherwise they are registered under the Cooperative Societies Act and are subject to the duties, liabilities and control of the provisions of the Cooperative Societies Act. We do not think that the question deserves any more consideration and, we, therefore, hold that the U.P. Cooperative Societies Act was within the competence of the State legislature. This was also the view taken in Nagpur District Central Cooperative Bank Ltd. v. Divisional Joint Registrar, Cooperatives Societies (AIR 1971 Bom 365 : 1971 Mah LJ 932) and Sant Sadhu Singh v. State of Punjab (AIR 1970 P & H 528) 11. Another submission made to us was that the enormous supervisory power vested in the Registrar of Cooperative Societies, the constitution of a centralised service and the plenitude of executive power given to the Secretary of the society have the effect of converting the so called Cooperative Society into a subordinate governmental institution and therefore the legislation cannot really be said to be a law in regard to cooperative societies so as to fall within Entry 32 of List II. We see no force in this submission. It is true that the Registrar is given wide powers of supervision. It is also true that Secretaries are also given vast executive powers. But the supervisory powers given to the Registrar, the executive powers given to the Secretary and the creation of a centralised service have a single object in view, namely, the better working of the cooperative societies. It is well known that many of the cooperative societies, particularly in rural areas, need the guidance of well trained expert officers and it is the function of the Secretary and the other members of the centralised service to afford proper guidance to the ignorant and often illiterate members of the cooperative society. The supervisory powers given to the Registrar are with a view to enable him and the officials of his department to keep a vigilant and benevolent eye on the working of the society so that none may take advantage of the innocent rural folk and so that the cooperative movement may be a success and a real boon to the weaker sections of the people. The constitution of a centralised service is perhaps to see that the officials do not acquire any vested interest in the cooperative society of a locality. Though Secretaries are vested with vast powers they are subject to the control and supervision of Chairman and the Committee of Management. We are, therefore, unable to agree with the submission that the U.P. Cooperative Societies Act is not a law dealing with cooperative societies because wide powers are given to the Registrar of Cooperative Societies and the Secretaries of Societies and because a centralised service has been created. 12. Another argument which was advanced before us was that the Secretaries and other employees of the cooperative banks are not liable to be transferred from one bank to another bank. Regulation No. 8(d) of the Cooperative Banks Centralised Service Rules, 1976, expressly empowers the Member-Secretary of the Administrative Committee to transfer a member of the service from one bank to another bank subject to the prior approval of the Chairman of the Committee. Once an employee has opted to be a member of the centralised service, - if he does not, he has to take his compensation and walk out - he is subject to the Centralised Service Rules and liable to be transferred from one bank to another. 13. In some of the cases it was urged that some person who had been appointed before the Cooperative Societies Employees Service Regulations, 975, were made under Section 122 of the Act, had been illegally discharged by the Administrator. On a perusal of the relevant affidavits and counter-affidavits we find that these appointments were made after the constitution of the U.P. Cooperative Institutional Service Board in whom vested the power of recruitment of employees of cooperative societies under Section 122 of the Act. Pending the making of the U.P. Cooperative Societies Employees Service Regulations prescribing the method of recruitment etc. administrative instructions had been issued to all the cooperative societies that appointments to all posts in cooperative societies would be made by the Board. If despite the constitution of the Board and the issuance of administrative instruction some cooperative societies chose to make appointments, such appointments have necessarily to be held to be invalid. The fact that Regulations had not been made when the appointments were made did not empower the committee of management to make the appointments usurping the power of the U.P. Cooperative Institutional Service Board. It appears that such persons as were appointed by the Committee of Management during the interregnum were given an opportunity to appear before the U.P. Cooperative Institutional Service Board and were screened. Some were selected and some were not. 14. Another question which was raised was that though the age of retirement of employees of some of the cooperative societies was originally 60 years under the U.P. Cooperative Societies Employees Service Regulations, the age of retirement has now been made 58 years. We are unable to see any force in this submission. Regulation 24(ii) itself provides that if before the coming into operation of the Regulations the society had entered into any contract with an employee on the date of his employment whereby he was entitled to continue beyond 58 years, the rule of retirement at the age of 58 years shall not apply and the age of retirement shall be governed by the contract. Therefore, if in any case there is a contract between a cooperative society and an employee entered into before the Regulations came into force stipulating the age of retirement as 60 years the Regulation now stipulating the age of retirement as 58 years will not apply to him. We make it clear that this principle does not apply to the members of the centralised services. The above discussion covers all the points which were argued before us. | 0[ds]There is no substance whatever in this submission. Entry 43 of List I is "incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations but not including cooperative societies". Entry 44 is "incorporation, regulation and winding up of corporations whether trading or not, with objects not confined to one State, but not including universities". Entry 45 is "banking". Entry 32 of List II is, "incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific religious and other societies and association; cooperative societies"Examining the provisions of the U.P. Cooperative Societies Act in the light of the observations of the Privy Council we do not have the slightest doubt that in pith and substance the Act deals with "cooperative societies". That it trenches upon banking incidentally does not take it beyond the competence of the State legislature. It is obvious that for the proper financing and effective functioning of cooperative societies there must also be cooperative societies which do banking business to facilitate the working of other cooperative societies. Merely because they do banking business such cooperative societies do not cease to be cooperative societies, when otherwise they are registered under the Cooperative Societies Act and are subject to the duties, liabilities and control of the provisions of the Cooperative Societies Act. We do not think that the question deserves any more consideration and, we, therefore, hold that the U.P. Cooperative Societies Act was within the competence of the State legislatureWe see no force in this submission. It is true that the Registrar is given wide powers of supervision. It is also true that Secretaries are also given vast executive powers. But the supervisory powers given to the Registrar, the executive powers given to the Secretary and the creation of a centralised service have a single object in view, namely, the better working of the cooperative societies. It is well known that many of the cooperative societies, particularly in rural areas, need the guidance of well trained expert officers and it is the function of the Secretary and the other members of the centralised service to afford proper guidance to the ignorant and often illiterate members of the cooperative society. The supervisory powers given to the Registrar are with a view to enable him and the officials of his department to keep a vigilant and benevolent eye on the working of the society so that none may take advantage of the innocent rural folk and so that the cooperative movement may be a success and a real boon to the weaker sections of the people. The constitution of a centralised service is perhaps to see that the officials do not acquire any vested interest in the cooperative society of a locality. Though Secretaries are vested with vast powers they are subject to the control and supervision of Chairman and the Committee of Management. We are, therefore, unable to agree with the submission that the U.P. Cooperative Societies Act is not a law dealing with cooperative societies because wide powers are given to the Registrar of Cooperative Societies and the Secretaries of Societies and because a centralised service has been created13. In some of the cases it was urged that some person who had been appointed before the Cooperative Societies Employees Service Regulations, 975, were made under Section 122 of the Act, had been illegally discharged by the Administrator. On a perusal of the relevant affidavits ands we find that these appointments were made after the constitution of the U.P. Cooperative Institutional Service Board in whom vested the power of recruitment of employees of cooperative societies under Section 122 of the Act. Pending the making of the U.P. Cooperative Societies Employees Service Regulations prescribing the method of recruitment etc. administrative instructions had been issued to all the cooperative societies that appointments to all posts in cooperative societies would be made by the Board. If despite the constitution of the Board and the issuance of administrative instruction some cooperative societies chose to make appointments, such appointments have necessarily to be held to be invalid. The fact that Regulations had not been made when the appointments were made did not empower the committee of management to make the appointments usurping the power of the U.P. Cooperative Institutional Service Board. It appears that such persons as were appointed by the Committee of Management during the interregnum were given an opportunity to appear before the U.P. Cooperative Institutional Service Board and were screened. Some were selected and some were not14. Another question which was raised was that though the age of retirement of employees of some of the cooperative societies was originally 60 years under the U.P. Cooperative Societies Employees Service Regulations, the age of retirement has now been made 58 years. We are unable to see any force in this submission. Regulation 24(ii) itself provides that if before the coming into operation of the Regulations the society had entered into any contract with an employee on the date of his employment whereby he was entitled to continue beyond 58 years, the rule of retirement at the age of 58 years shall not apply and the age of retirement shall be governed by the contract. Therefore, if in any case there is a contract between a cooperative society and an employee entered into before the Regulations came into force stipulating the age of retirement as 60 years the Regulation now stipulating the age of retirement as 58 years will not apply to him. We make it clear that this principle does not apply to the members of the centralised services. The above discussion covers all the points which were argued before us. | 0 | 3,463 | 1,039 | ### 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:
cooperative societies, when otherwise they are registered under the Cooperative Societies Act and are subject to the duties, liabilities and control of the provisions of the Cooperative Societies Act. We do not think that the question deserves any more consideration and, we, therefore, hold that the U.P. Cooperative Societies Act was within the competence of the State legislature. This was also the view taken in Nagpur District Central Cooperative Bank Ltd. v. Divisional Joint Registrar, Cooperatives Societies (AIR 1971 Bom 365 : 1971 Mah LJ 932) and Sant Sadhu Singh v. State of Punjab (AIR 1970 P & H 528) 11. Another submission made to us was that the enormous supervisory power vested in the Registrar of Cooperative Societies, the constitution of a centralised service and the plenitude of executive power given to the Secretary of the society have the effect of converting the so called Cooperative Society into a subordinate governmental institution and therefore the legislation cannot really be said to be a law in regard to cooperative societies so as to fall within Entry 32 of List II. We see no force in this submission. It is true that the Registrar is given wide powers of supervision. It is also true that Secretaries are also given vast executive powers. But the supervisory powers given to the Registrar, the executive powers given to the Secretary and the creation of a centralised service have a single object in view, namely, the better working of the cooperative societies. It is well known that many of the cooperative societies, particularly in rural areas, need the guidance of well trained expert officers and it is the function of the Secretary and the other members of the centralised service to afford proper guidance to the ignorant and often illiterate members of the cooperative society. The supervisory powers given to the Registrar are with a view to enable him and the officials of his department to keep a vigilant and benevolent eye on the working of the society so that none may take advantage of the innocent rural folk and so that the cooperative movement may be a success and a real boon to the weaker sections of the people. The constitution of a centralised service is perhaps to see that the officials do not acquire any vested interest in the cooperative society of a locality. Though Secretaries are vested with vast powers they are subject to the control and supervision of Chairman and the Committee of Management. We are, therefore, unable to agree with the submission that the U.P. Cooperative Societies Act is not a law dealing with cooperative societies because wide powers are given to the Registrar of Cooperative Societies and the Secretaries of Societies and because a centralised service has been created. 12. Another argument which was advanced before us was that the Secretaries and other employees of the cooperative banks are not liable to be transferred from one bank to another bank. Regulation No. 8(d) of the Cooperative Banks Centralised Service Rules, 1976, expressly empowers the Member-Secretary of the Administrative Committee to transfer a member of the service from one bank to another bank subject to the prior approval of the Chairman of the Committee. Once an employee has opted to be a member of the centralised service, - if he does not, he has to take his compensation and walk out - he is subject to the Centralised Service Rules and liable to be transferred from one bank to another. 13. In some of the cases it was urged that some person who had been appointed before the Cooperative Societies Employees Service Regulations, 975, were made under Section 122 of the Act, had been illegally discharged by the Administrator. On a perusal of the relevant affidavits and counter-affidavits we find that these appointments were made after the constitution of the U.P. Cooperative Institutional Service Board in whom vested the power of recruitment of employees of cooperative societies under Section 122 of the Act. Pending the making of the U.P. Cooperative Societies Employees Service Regulations prescribing the method of recruitment etc. administrative instructions had been issued to all the cooperative societies that appointments to all posts in cooperative societies would be made by the Board. If despite the constitution of the Board and the issuance of administrative instruction some cooperative societies chose to make appointments, such appointments have necessarily to be held to be invalid. The fact that Regulations had not been made when the appointments were made did not empower the committee of management to make the appointments usurping the power of the U.P. Cooperative Institutional Service Board. It appears that such persons as were appointed by the Committee of Management during the interregnum were given an opportunity to appear before the U.P. Cooperative Institutional Service Board and were screened. Some were selected and some were not. 14. Another question which was raised was that though the age of retirement of employees of some of the cooperative societies was originally 60 years under the U.P. Cooperative Societies Employees Service Regulations, the age of retirement has now been made 58 years. We are unable to see any force in this submission. Regulation 24(ii) itself provides that if before the coming into operation of the Regulations the society had entered into any contract with an employee on the date of his employment whereby he was entitled to continue beyond 58 years, the rule of retirement at the age of 58 years shall not apply and the age of retirement shall be governed by the contract. Therefore, if in any case there is a contract between a cooperative society and an employee entered into before the Regulations came into force stipulating the age of retirement as 60 years the Regulation now stipulating the age of retirement as 58 years will not apply to him. We make it clear that this principle does not apply to the members of the centralised services. The above discussion covers all the points which were argued before us.
### Response:
0
### Explanation:
There is no substance whatever in this submission. Entry 43 of List I is "incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations but not including cooperative societies". Entry 44 is "incorporation, regulation and winding up of corporations whether trading or not, with objects not confined to one State, but not including universities". Entry 45 is "banking". Entry 32 of List II is, "incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific religious and other societies and association; cooperative societies"Examining the provisions of the U.P. Cooperative Societies Act in the light of the observations of the Privy Council we do not have the slightest doubt that in pith and substance the Act deals with "cooperative societies". That it trenches upon banking incidentally does not take it beyond the competence of the State legislature. It is obvious that for the proper financing and effective functioning of cooperative societies there must also be cooperative societies which do banking business to facilitate the working of other cooperative societies. Merely because they do banking business such cooperative societies do not cease to be cooperative societies, when otherwise they are registered under the Cooperative Societies Act and are subject to the duties, liabilities and control of the provisions of the Cooperative Societies Act. We do not think that the question deserves any more consideration and, we, therefore, hold that the U.P. Cooperative Societies Act was within the competence of the State legislatureWe see no force in this submission. It is true that the Registrar is given wide powers of supervision. It is also true that Secretaries are also given vast executive powers. But the supervisory powers given to the Registrar, the executive powers given to the Secretary and the creation of a centralised service have a single object in view, namely, the better working of the cooperative societies. It is well known that many of the cooperative societies, particularly in rural areas, need the guidance of well trained expert officers and it is the function of the Secretary and the other members of the centralised service to afford proper guidance to the ignorant and often illiterate members of the cooperative society. The supervisory powers given to the Registrar are with a view to enable him and the officials of his department to keep a vigilant and benevolent eye on the working of the society so that none may take advantage of the innocent rural folk and so that the cooperative movement may be a success and a real boon to the weaker sections of the people. The constitution of a centralised service is perhaps to see that the officials do not acquire any vested interest in the cooperative society of a locality. Though Secretaries are vested with vast powers they are subject to the control and supervision of Chairman and the Committee of Management. We are, therefore, unable to agree with the submission that the U.P. Cooperative Societies Act is not a law dealing with cooperative societies because wide powers are given to the Registrar of Cooperative Societies and the Secretaries of Societies and because a centralised service has been created13. In some of the cases it was urged that some person who had been appointed before the Cooperative Societies Employees Service Regulations, 975, were made under Section 122 of the Act, had been illegally discharged by the Administrator. On a perusal of the relevant affidavits ands we find that these appointments were made after the constitution of the U.P. Cooperative Institutional Service Board in whom vested the power of recruitment of employees of cooperative societies under Section 122 of the Act. Pending the making of the U.P. Cooperative Societies Employees Service Regulations prescribing the method of recruitment etc. administrative instructions had been issued to all the cooperative societies that appointments to all posts in cooperative societies would be made by the Board. If despite the constitution of the Board and the issuance of administrative instruction some cooperative societies chose to make appointments, such appointments have necessarily to be held to be invalid. The fact that Regulations had not been made when the appointments were made did not empower the committee of management to make the appointments usurping the power of the U.P. Cooperative Institutional Service Board. It appears that such persons as were appointed by the Committee of Management during the interregnum were given an opportunity to appear before the U.P. Cooperative Institutional Service Board and were screened. Some were selected and some were not14. Another question which was raised was that though the age of retirement of employees of some of the cooperative societies was originally 60 years under the U.P. Cooperative Societies Employees Service Regulations, the age of retirement has now been made 58 years. We are unable to see any force in this submission. Regulation 24(ii) itself provides that if before the coming into operation of the Regulations the society had entered into any contract with an employee on the date of his employment whereby he was entitled to continue beyond 58 years, the rule of retirement at the age of 58 years shall not apply and the age of retirement shall be governed by the contract. Therefore, if in any case there is a contract between a cooperative society and an employee entered into before the Regulations came into force stipulating the age of retirement as 60 years the Regulation now stipulating the age of retirement as 58 years will not apply to him. We make it clear that this principle does not apply to the members of the centralised services. The above discussion covers all the points which were argued before us.
|
M/S. Castrol India Ltd Vs. Comnr. Of Central Excise, Calcutta-I | oils or by blending or compounding of mineral oils with any other ingredients, from the whole of the duty of excise leviable thereon under Section 3 of the Central Excises and Salt Act, 1944 (1 of 1944).Explanation - The expression "mineral oil" has the meaning assigned to it in Explanation 1 to Item No.6 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944)."Entry no.11B reads as follows:"11B - Blended or compounded lubricating oils and greases:"Blended or compounded lubricating oils and greases" means lubricating oils and greases obtained by straight blending of mineral oils or by blending or compounding of mineral oils with any other ingredients.Explanation - The expression "mineral oil" has the meaning assigned to it in Explanation 1 of Item No.6." 11. Chapter 27 so far as relevant for the purpose of present dispute contains sub-headings 2710.60 and 2710.99 which read as follows: "2710.60 - Lubricating oil, that is to say, any oil as is ordinarily used for lubrication, excluding any hydrocarbon oil which has it s flash point below 94ºC.2710.99 - Others." 12. In Collector of Customs, Bangalore vs. Maestro Motors Ltd. (2004 (174) ELT 289 (SC) , this Court held as follows: "It is settled law that to avail the benefit of a notification a party must comply with tall the conditions of the Notification. Further, a Notification has to be interpreted in terms of its language. If in the Notification exemption is granted with reference to tariff items in the First Schedule to the Customs Tariff Act, 1975, then the same Rules of Interpretation must apply. In that case the goods will be classified, even for the purposes of the Notification, as they are classified for purposes of payment of duty. But where the language is plain and clear effect must be given to it. In this Notification what is exempted is components, including components of fuel efficient motor cars in semi-knocked down packs and completely knocked down packs. Undoubtedly, for purposes of levy of custom duty, by virtue of Interpretative Rule 2(a), the components in a completely knocked down pack would be considered to be cars. But in view of the clear language of the Notification the components including components in completely knocked down packs are exempted. Effect must be given to the wording of the Notification. Thus components in completely knocked down packs would get the exemption under this Notification, even though for purposes of classification they may be considered to be cars." Section 5A(4) of the Act reads as under: "Every notification issued under sub-rule (1), and every order made under sub-rule (2) of Rule 8 of the Central Excise Rules, 1944, and in force immediately before the commencement of the Customs and Central Excise Laws (Amendment) Act, 1987 shall be deemed to have been issued or made under the provisions of this Section and shall continue to have the same force and effect after such commencement until it is amended, varied, rescinded or superseded under the provisions of this Section." 13. Undisputedly in the present case there was no reference to any tariff entry in the Notification. Therefore, the majority view is clearly unsustainable. Additionally, we find that CEGAT had in some other cases taken the same view as the minority view. It is fairly accepted by learned Additional Solicitor General that there has been no challenge to the said decisions one of which is Bharat Petroleum Corporation Ltd. vs. Commissioner of Central Excise, Kolkata-I (2003 (154) ELT 698 (Tri -Kolkata) decided on 30.10.2002.14. Exemption Notification 120/84-CE dated 11.5.1984, in view of what is prescribed in Section 5A(4) of the Act, continued to be operative and effective as it was not amended, varied, rescinded or superseded under the provisions of Section 5A of the Act.15. In Strouds Judicial Dictionary, 4th Edition, Vol.5, at page 2753, we find: "That is to say" is the commencement of an ancillary clauses, which explains the meaning of the principal clause. It has the following properties : (1) it must not be contrary to the principal clause; (2) it must neither increase nor diminish it; (3) but where the physical clause is general in terms it may restrict it; see this explained with many examples, Stukeley vs. Butler Hob. 1971". The quotation, given above, from Strouds Judicial Dictionary shows that, ordinarily the expression "that is to say" is employed to make clear and fix the meaning of what is to be explained or defined. Such words are not used as a rule, to amplify a meaning while removing a possible doubt for which purpose the word "includes" is generally employed. In unusual cases, depending upon the context of the words "that is to say", this expression may be followed by illustrative instances. (See State of T.N. vs. Pyare Lal Malhotra (1976 (1) SCC 834 ), Mahindra Engineering and Chemical Products Ltd. vs. Union of India (1992(1) SCC 727); Sait Rikhaji Furtarnal vs. State of A.P. (1991 Supp (1) SCC 202); and R. Dalmia vs. C.I.T. (1977 (2) SCC 467 ).16. The expression "that is to say" is descriptive, enumerative and exhaustive and circumstances to a great extent the scope of the entry. (See Commissioner of Sales Tax, M.P. vs. Popular Trading Company, Ujjain (2000 (5) SCC 511 ).17. The expression "that is to say" in sub-heading 2710.60 has to be interpreted to be words of limitation. The fact that sub-heading 2710.60 contains an exclusion clause goes to show that there may be other lubricating oils which may fall in the residuary heading "others".18. The sub-heading 2710.60 significantly uses two expressions. They are (i) "that is to say" and (ii) "excluding". The first expression is used in description, enumerative and exhaustive sense and to a great extent circumstances the scope of the entry. But the second expression dilutes the pervasiveness by carving out an exception for the purpose of the particular sub-heading a particular type of lubricating oil. All other types of lubricating oil are covered by the residuary entry i.e. 2710.99. | 1[ds]13. Undisputedly in the present case there was no reference to any tariff entry in the Notification. Therefore, the majority view is clearly unsustainable. Additionally, we find that CEGAT had in some other cases taken the same view as the minority view. It is fairly accepted by learned Additional Solicitor General that there has been no challenge to the said decisions one of which is Bharat Petroleum Corporation Ltd. vs. Commissioner of Central Excise, Kolkata-I (2003 (154) ELT 698 (Tri -Kolkata) decided on 30.10.2002.14. Exemption Notification 120/84-CE dated 11.5.1984, in view of what is prescribed in Section 5A(4) of the Act, continued to be operative and effective as it was not amended, varied, rescinded or superseded under the provisions of Section 5A of the Act.15. In Strouds Judicial Dictionary, 4th Edition, Vol.5, at page 2753, we find: "That is to say" is the commencement of an ancillary clauses, which explains the meaning of the principal clause. It has the following properties : (1) it must not be contrary to the principal clause; (2) it must neither increase nor diminish it; (3) but where the physical clause is general in terms it may restrict it; see this explained with many examples, Stukeley vs. Butler Hob. 1971". The quotation, given above, from Strouds Judicial Dictionary shows that, ordinarily the expression "that is to say" is employed to make clear and fix the meaning of what is to be explained or defined. Such words are not used as a rule, to amplify a meaning while removing a possible doubt for which purpose the word "includes" is generally employed. In unusual cases, depending upon the context of the words "that is to say", this expression may be followed by illustrative instances. (See State of T.N. vs. Pyare Lal Malhotra (1976 (1) SCC 834 ), Mahindra Engineering and Chemical Products Ltd. vs. Union of India (1992(1) SCC 727); Sait Rikhaji Furtarnal vs. State of A.P. (1991 Supp (1) SCC 202); and R. Dalmia vs. C.I.T. (1977 (2) SCC 467 ).16. The expression "that is to say" is descriptive, enumerative and exhaustive and circumstances to a great extent the scope of the entry. (See Commissioner of Sales Tax, M.P. vs. Popular Trading Company, Ujjain (2000 (5) SCC 511 ).17. The expression "that is to say" in sub-heading 2710.60 has to be interpreted to be words of limitation. The fact that sub-heading 2710.60 contains an exclusion clause goes to show that there may be other lubricating oils which may fall in the residuary heading "others".18. The sub-heading 2710.60 significantly uses two expressions. They are (i) "that is to say" and (ii) "excluding". The first expression is used in description, enumerative and exhaustive sense and to a great extent circumstances the scope of the entry. But the second expression dilutes the pervasiveness by carving out an exception for the purpose of the particular sub-heading a particular type of lubricating oil. All other types of lubricating oil are covered by the residuary entry i.e. 2710.99. | 1 | 2,684 | 616 | ### 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:
oils or by blending or compounding of mineral oils with any other ingredients, from the whole of the duty of excise leviable thereon under Section 3 of the Central Excises and Salt Act, 1944 (1 of 1944).Explanation - The expression "mineral oil" has the meaning assigned to it in Explanation 1 to Item No.6 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944)."Entry no.11B reads as follows:"11B - Blended or compounded lubricating oils and greases:"Blended or compounded lubricating oils and greases" means lubricating oils and greases obtained by straight blending of mineral oils or by blending or compounding of mineral oils with any other ingredients.Explanation - The expression "mineral oil" has the meaning assigned to it in Explanation 1 of Item No.6." 11. Chapter 27 so far as relevant for the purpose of present dispute contains sub-headings 2710.60 and 2710.99 which read as follows: "2710.60 - Lubricating oil, that is to say, any oil as is ordinarily used for lubrication, excluding any hydrocarbon oil which has it s flash point below 94ºC.2710.99 - Others." 12. In Collector of Customs, Bangalore vs. Maestro Motors Ltd. (2004 (174) ELT 289 (SC) , this Court held as follows: "It is settled law that to avail the benefit of a notification a party must comply with tall the conditions of the Notification. Further, a Notification has to be interpreted in terms of its language. If in the Notification exemption is granted with reference to tariff items in the First Schedule to the Customs Tariff Act, 1975, then the same Rules of Interpretation must apply. In that case the goods will be classified, even for the purposes of the Notification, as they are classified for purposes of payment of duty. But where the language is plain and clear effect must be given to it. In this Notification what is exempted is components, including components of fuel efficient motor cars in semi-knocked down packs and completely knocked down packs. Undoubtedly, for purposes of levy of custom duty, by virtue of Interpretative Rule 2(a), the components in a completely knocked down pack would be considered to be cars. But in view of the clear language of the Notification the components including components in completely knocked down packs are exempted. Effect must be given to the wording of the Notification. Thus components in completely knocked down packs would get the exemption under this Notification, even though for purposes of classification they may be considered to be cars." Section 5A(4) of the Act reads as under: "Every notification issued under sub-rule (1), and every order made under sub-rule (2) of Rule 8 of the Central Excise Rules, 1944, and in force immediately before the commencement of the Customs and Central Excise Laws (Amendment) Act, 1987 shall be deemed to have been issued or made under the provisions of this Section and shall continue to have the same force and effect after such commencement until it is amended, varied, rescinded or superseded under the provisions of this Section." 13. Undisputedly in the present case there was no reference to any tariff entry in the Notification. Therefore, the majority view is clearly unsustainable. Additionally, we find that CEGAT had in some other cases taken the same view as the minority view. It is fairly accepted by learned Additional Solicitor General that there has been no challenge to the said decisions one of which is Bharat Petroleum Corporation Ltd. vs. Commissioner of Central Excise, Kolkata-I (2003 (154) ELT 698 (Tri -Kolkata) decided on 30.10.2002.14. Exemption Notification 120/84-CE dated 11.5.1984, in view of what is prescribed in Section 5A(4) of the Act, continued to be operative and effective as it was not amended, varied, rescinded or superseded under the provisions of Section 5A of the Act.15. In Strouds Judicial Dictionary, 4th Edition, Vol.5, at page 2753, we find: "That is to say" is the commencement of an ancillary clauses, which explains the meaning of the principal clause. It has the following properties : (1) it must not be contrary to the principal clause; (2) it must neither increase nor diminish it; (3) but where the physical clause is general in terms it may restrict it; see this explained with many examples, Stukeley vs. Butler Hob. 1971". The quotation, given above, from Strouds Judicial Dictionary shows that, ordinarily the expression "that is to say" is employed to make clear and fix the meaning of what is to be explained or defined. Such words are not used as a rule, to amplify a meaning while removing a possible doubt for which purpose the word "includes" is generally employed. In unusual cases, depending upon the context of the words "that is to say", this expression may be followed by illustrative instances. (See State of T.N. vs. Pyare Lal Malhotra (1976 (1) SCC 834 ), Mahindra Engineering and Chemical Products Ltd. vs. Union of India (1992(1) SCC 727); Sait Rikhaji Furtarnal vs. State of A.P. (1991 Supp (1) SCC 202); and R. Dalmia vs. C.I.T. (1977 (2) SCC 467 ).16. The expression "that is to say" is descriptive, enumerative and exhaustive and circumstances to a great extent the scope of the entry. (See Commissioner of Sales Tax, M.P. vs. Popular Trading Company, Ujjain (2000 (5) SCC 511 ).17. The expression "that is to say" in sub-heading 2710.60 has to be interpreted to be words of limitation. The fact that sub-heading 2710.60 contains an exclusion clause goes to show that there may be other lubricating oils which may fall in the residuary heading "others".18. The sub-heading 2710.60 significantly uses two expressions. They are (i) "that is to say" and (ii) "excluding". The first expression is used in description, enumerative and exhaustive sense and to a great extent circumstances the scope of the entry. But the second expression dilutes the pervasiveness by carving out an exception for the purpose of the particular sub-heading a particular type of lubricating oil. All other types of lubricating oil are covered by the residuary entry i.e. 2710.99.
### Response:
1
### Explanation:
13. Undisputedly in the present case there was no reference to any tariff entry in the Notification. Therefore, the majority view is clearly unsustainable. Additionally, we find that CEGAT had in some other cases taken the same view as the minority view. It is fairly accepted by learned Additional Solicitor General that there has been no challenge to the said decisions one of which is Bharat Petroleum Corporation Ltd. vs. Commissioner of Central Excise, Kolkata-I (2003 (154) ELT 698 (Tri -Kolkata) decided on 30.10.2002.14. Exemption Notification 120/84-CE dated 11.5.1984, in view of what is prescribed in Section 5A(4) of the Act, continued to be operative and effective as it was not amended, varied, rescinded or superseded under the provisions of Section 5A of the Act.15. In Strouds Judicial Dictionary, 4th Edition, Vol.5, at page 2753, we find: "That is to say" is the commencement of an ancillary clauses, which explains the meaning of the principal clause. It has the following properties : (1) it must not be contrary to the principal clause; (2) it must neither increase nor diminish it; (3) but where the physical clause is general in terms it may restrict it; see this explained with many examples, Stukeley vs. Butler Hob. 1971". The quotation, given above, from Strouds Judicial Dictionary shows that, ordinarily the expression "that is to say" is employed to make clear and fix the meaning of what is to be explained or defined. Such words are not used as a rule, to amplify a meaning while removing a possible doubt for which purpose the word "includes" is generally employed. In unusual cases, depending upon the context of the words "that is to say", this expression may be followed by illustrative instances. (See State of T.N. vs. Pyare Lal Malhotra (1976 (1) SCC 834 ), Mahindra Engineering and Chemical Products Ltd. vs. Union of India (1992(1) SCC 727); Sait Rikhaji Furtarnal vs. State of A.P. (1991 Supp (1) SCC 202); and R. Dalmia vs. C.I.T. (1977 (2) SCC 467 ).16. The expression "that is to say" is descriptive, enumerative and exhaustive and circumstances to a great extent the scope of the entry. (See Commissioner of Sales Tax, M.P. vs. Popular Trading Company, Ujjain (2000 (5) SCC 511 ).17. The expression "that is to say" in sub-heading 2710.60 has to be interpreted to be words of limitation. The fact that sub-heading 2710.60 contains an exclusion clause goes to show that there may be other lubricating oils which may fall in the residuary heading "others".18. The sub-heading 2710.60 significantly uses two expressions. They are (i) "that is to say" and (ii) "excluding". The first expression is used in description, enumerative and exhaustive sense and to a great extent circumstances the scope of the entry. But the second expression dilutes the pervasiveness by carving out an exception for the purpose of the particular sub-heading a particular type of lubricating oil. All other types of lubricating oil are covered by the residuary entry i.e. 2710.99.
|
Noor Ali Vs. National Insurance Co. Ltd | 1. Leave granted. 2. Heard learned counsel for the parties. 3. The appellant is engaged in the business of motor parts. He took fire insurance policy for the period from 18th July, 2003, to 17th July, 2004 for a sum of Rupees ten lakhs. On the night intervening 3rd/4th August, 2003, at about 11.00 p.m., a fire incident took place in which the appellants goods and shops were damaged. On receipt of intimation from the appellant, the respondent deputed a Surveyor and Loss Agent, Shri K.B. Mahajan, who after assessment, submitted report dated 15th December, 2003. Shri Mahajan assessed the loss to the appellant at Rs.1,79,111/-. Thereafter, the Insurance Company released Rs.1,21,117/- in favour of the appellant as full and final settlement of his claim. The appellant accepted the amount under protest. This was clearly recorded in the form of endorsement made on letter dated 17th March, 2004 written by the Branch Manager of the respondent to the Senior Manager, Bank of Baroda. 4. Feeling aggrieved by the respondents refusal to reimburse the loss of Rupees eight lakhs which, according to the appellant, was suffered by him in the fire accident, he filed a complaint under Section 12 of the Consumer Protection Act, 1986. The respondent disputed the claim of the appellant and averred that in view of the report of the surveyor, he was not entitled to anything over and above what was already paid. The respondent also took up the plea that after having accepted the amount of Rs.1,29,117/- in full and final settlement of his claim, the appellant was not entitled to claim higher compensation. The appellant produced as many as twenty documents which included report of the Fire Officer, Sultanpur, the bank statement for the last three years, stock statement for the last three years along with covering letter and a list of 168 duplicate cash memos and three balance sheets for the years 2001-2003. After considering the entire record, the District Consumer Disputes Redressal Forum, Sultanpur, [for short, "the District Forum"] awarded compensation of Rs.6,70,883/- with interest at the rate of twelve per cent per annum from the date of complaint, i.e., 5th May, 2004. Damages of Rs.10,000/- and litigation expenses of Rs.200/- were also awarded to the appellant with a stipulation that if the amount is not paid, then the rate of interest shall be fifteen per cent instead of twelve per cent per annum. 5. On an appeal preferred by the respondent, the State Consumer Disputes Redressal Commission [for short, "State Commission"], set aside the order of the District Forum. When the matter was taken up by the appellant in revision, National Consumer Disputes Redressal Commission [for short, "National Commission"], directed the respondent to pay Rs.50,000/- by observing that the said amount had been deducted from the assessment made by the Surveyors report without any justification. 6. From a bare perusal of the impugned orders of the State Commission and the National Commission, it is clear that neither of them considered the documents produced by the appellant which had been considered by the District Forum while awarding compensation of Rs.6,70,883/- and on that account cause of the appellant has been seriously prejudiced. 7. | 1[ds]From a bare perusal of the impugned orders of the State Commission and the National Commission, it is clear that neither of them considered the documents produced by the appellant which had been considered by the District Forum while awarding compensation of Rs.6,70,883/and on that account cause of the appellant has been seriously prejudiced. | 1 | 607 | 60 | ### 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:
1. Leave granted. 2. Heard learned counsel for the parties. 3. The appellant is engaged in the business of motor parts. He took fire insurance policy for the period from 18th July, 2003, to 17th July, 2004 for a sum of Rupees ten lakhs. On the night intervening 3rd/4th August, 2003, at about 11.00 p.m., a fire incident took place in which the appellants goods and shops were damaged. On receipt of intimation from the appellant, the respondent deputed a Surveyor and Loss Agent, Shri K.B. Mahajan, who after assessment, submitted report dated 15th December, 2003. Shri Mahajan assessed the loss to the appellant at Rs.1,79,111/-. Thereafter, the Insurance Company released Rs.1,21,117/- in favour of the appellant as full and final settlement of his claim. The appellant accepted the amount under protest. This was clearly recorded in the form of endorsement made on letter dated 17th March, 2004 written by the Branch Manager of the respondent to the Senior Manager, Bank of Baroda. 4. Feeling aggrieved by the respondents refusal to reimburse the loss of Rupees eight lakhs which, according to the appellant, was suffered by him in the fire accident, he filed a complaint under Section 12 of the Consumer Protection Act, 1986. The respondent disputed the claim of the appellant and averred that in view of the report of the surveyor, he was not entitled to anything over and above what was already paid. The respondent also took up the plea that after having accepted the amount of Rs.1,29,117/- in full and final settlement of his claim, the appellant was not entitled to claim higher compensation. The appellant produced as many as twenty documents which included report of the Fire Officer, Sultanpur, the bank statement for the last three years, stock statement for the last three years along with covering letter and a list of 168 duplicate cash memos and three balance sheets for the years 2001-2003. After considering the entire record, the District Consumer Disputes Redressal Forum, Sultanpur, [for short, "the District Forum"] awarded compensation of Rs.6,70,883/- with interest at the rate of twelve per cent per annum from the date of complaint, i.e., 5th May, 2004. Damages of Rs.10,000/- and litigation expenses of Rs.200/- were also awarded to the appellant with a stipulation that if the amount is not paid, then the rate of interest shall be fifteen per cent instead of twelve per cent per annum. 5. On an appeal preferred by the respondent, the State Consumer Disputes Redressal Commission [for short, "State Commission"], set aside the order of the District Forum. When the matter was taken up by the appellant in revision, National Consumer Disputes Redressal Commission [for short, "National Commission"], directed the respondent to pay Rs.50,000/- by observing that the said amount had been deducted from the assessment made by the Surveyors report without any justification. 6. From a bare perusal of the impugned orders of the State Commission and the National Commission, it is clear that neither of them considered the documents produced by the appellant which had been considered by the District Forum while awarding compensation of Rs.6,70,883/- and on that account cause of the appellant has been seriously prejudiced. 7.
### Response:
1
### Explanation:
From a bare perusal of the impugned orders of the State Commission and the National Commission, it is clear that neither of them considered the documents produced by the appellant which had been considered by the District Forum while awarding compensation of Rs.6,70,883/and on that account cause of the appellant has been seriously prejudiced.
|
Indian Aluminium Cables Limited and Another Vs. Excise and Taxation Officer and Another | the judgment on behalf of a Constitution Bench of this Court adverted to the facts of the case and stated that the registered dealer under the Punjab General Sales Tax Act had filed returns for the 4 quarters of the financial year ending on March 31, 1955 as also for the 4 quarters for the financial year ending on March 31, 1956. In respect of each year the Sales Tax Assessing Officer served three successive notices on the dealer, one on March 7, 1958, the other on April 4, 1958, and the third on August 18, 1959. The first two notices were merely under section 11(2) of the Act. But in the last notice which was issued after the expiry of 3 years it was stated that on the dealers failure to produce the documents and other evidence mentioned in the notice, the case would be decided on best judgment basis. The dealer did not comply with any of the notices and challenged with success by a petition under Article 32 of the Constitution the right of the authorities to make a best judgment assessment. In that connection it was pointed out that the period of 3 years mentioned in sub-section (4) of Section 11 of the Act had to be counted from the expiry of the period in relation to which the returns had been filed and on expiry of the said period the authorities could not proceed to make the best judgment assessment. The third and the last notice given on August 18, 1959 was taken to be a notice to the dealer the assessing authority was proceeding to make the best judgment assessment and since this was done more than 3 years after expiry of all the 8 quarters in respect of the two years it was held to be without jurisdiction and the respondent was restrained from making any best judgment assessment on the petitioner for sales tax for any quarter of the financial years 1954-55 and 1955-56. The decision of this Court in Madan Lal Aroras case justifies our apprehension which we have mentioned in the beginning of our judgment to the effect that if a dealer fails to comply with the notice issued under section 11(2) of the Act, then in such a case, even though there may not be any time limit for issuance of a notice, but on the dealers failure to comply with it the assessing authority may be obliged to take recourse to sub-section (4) attracting the bar of limitation of 5 years for proceeding to assess on the best judgment basis. The majority, however, was wrong when they said at page 949 of 15 S.T.C. with reference to Madan Lal Aroras case :"In the case before the Supreme Court, two notices were within three years and the third notice was beyond three years and their Lordships held that the third notice being beyond three years, the Assessing Authority had no jurisdiction to make to assessment. If the phrase "proceed to assess" bears the meaning which the learned counsel for the State contends for, namely, that only a step towards assessment has to be taken and the assessment can be made at any time after the period of three years, their Lordships would, on the basis of the two notices within the period of limitation, have come to a different conclusion and that is not what has been done." This was, it appears to us, clearly a mistaken reading of the judgment of this Court. The majority in our opinion, was also wrong in importing the period of limitation provided in sub-sections (4), (5) and (6) of section 11 of the Act into sub-section (3) must also be completed within 3 years from the last date on which the return should be filed under the Act. We are again constrained to point out that the majority of the Full Bench committed a mistake in thinking that this Court had held in Madan Lal Aroras case that the period of 3 years had to be counted from the last date on which the return should be filed. The decision of the Full Bench of the Punjab High Court in the case of Rameshwar Lals case (supra) is clearly erroneous and must be over-ruled. Pandit, J. in his dissenting opinion had, by and large, taken a correct view in favour of the Revenue. 13. Lastly, we may also make a reference to a recent decision of this Court delivered by one of us (Untwalia, J, ) in the case of Gurbaksh Singh vs. Union of India & Others. An argument quite similar to the one advanced before us was advanced on behalf of the assessee appellant in that case before this Court. It was argued that the period of 4 years of limitation prescribed under sub-section (2a) of section 11 of the Bengal Finance (Sales Tax) Act, 1941 as extended to the Union Territory of Delhi, should be imported into the revisional and the appellate power of the authorities conferred on them under section 20. This argument was repelled and it was pointed out that the legislature had not provided any period within which an order was to be made by an Appellate or Revisional authority; no such period should be imported in the exercise of the power on the basis of section 11(2a). Mr. Desai relied upon the pen-ultimate paragraph of this decision in support of his contention that in any view of the matter notice under section 11(2) had to be issued and the assessment completed within a reasonable time. We do not accept this contention to be sound. The argument as presented cannot be accepted to be correct. In Gurbaksh Singhs case it was not stated that the exercise of the revisional power suo moto could not be made after an undue long delay. On such an assumption it was merely found as a fact that there was no undue delay in the suo moto exercise of the power. | 0[ds]This was, it appears to us, clearly a mistaken reading of the judgment of this Court. The majority in our opinion, was also wrong in importing the period of limitation provided ins (4), (5) and (6) of section 11 of the Act inton (3) must also be completed within 3 years from the last date on which the return should be filed under the Act. We are again constrained to point out that the majority of the Full Bench committed a mistake in thinking that this Court had held in Madan Lal Aroras case that the period of 3 years had to be counted from the last date on which the return should be filed. The decision of the Full Bench of the Punjab High Court in the case of Rameshwar Lals case (supra) is clearly erroneous and must be. Pandit, J. in his dissenting opinion had, by and large, taken a correct view in favour of the Revenue13. Lastly, we may also make a reference to a recent decision of this Court delivered by one of us (Untwalia, J, ) in the case of Gurbaksh Singh vs. Union of India & Others. An argument quite similar to the one advanced before us was advanced on behalf of the assessee appellant in that case before this Court. It was argued that the period of 4 years of limitation prescribed undern (2a) of section 11 of the Bengal Finance (Sales Tax) Act, 1941 as extended to the Union Territory of Delhi, should be imported into the revisional and the appellate power of the authorities conferred on them under section 20. This argument was repelled and it was pointed out that the legislature had not provided any period within which an order was to be made by an Appellate or Revisional authority; no such period should be imported in the exercise of the power on the basis of section 11(2a). Mr. Desai relied upon thee paragraph of this decision in support of his contention that in any view of the matter notice under section 11(2) had to be issued and the assessment completed within a reasonable time. We do not accept this contention to be sound. The argument as presented cannot be accepted to be correct. In Gurbaksh Singhs case it was not stated that the exercise of the revisional power suo moto could not be made after an undue long delay. On such an assumption it was merely found as a fact that there was no undue delay in the suo moto exercise of the powerThis was, it appears to us, clearly a mistaken reading of the judgment of this Court. The majority in our opinion, was also wrong in importing the period of limitation provided ins (4), (5) and (6) of section 11 of the Act inton (3) must also be completed within 3 years from the last date on which the return should be filed under the Act. We are again constrained to point out that the majority of the Full Bench committed a mistake in thinking that this Court had held in Madan Lal Aroras case that the period of 3 years had to be counted from the last date on which the return should be filed. The decision of the Full Bench of the Punjab High Court in the case of Rameshwar Lals case (supra) is clearly erroneous and must be. Pandit, J. in his dissenting opinion had, by and large, taken a correct view in favour of the | 0 | 5,748 | 655 | ### Instruction:
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the judgment on behalf of a Constitution Bench of this Court adverted to the facts of the case and stated that the registered dealer under the Punjab General Sales Tax Act had filed returns for the 4 quarters of the financial year ending on March 31, 1955 as also for the 4 quarters for the financial year ending on March 31, 1956. In respect of each year the Sales Tax Assessing Officer served three successive notices on the dealer, one on March 7, 1958, the other on April 4, 1958, and the third on August 18, 1959. The first two notices were merely under section 11(2) of the Act. But in the last notice which was issued after the expiry of 3 years it was stated that on the dealers failure to produce the documents and other evidence mentioned in the notice, the case would be decided on best judgment basis. The dealer did not comply with any of the notices and challenged with success by a petition under Article 32 of the Constitution the right of the authorities to make a best judgment assessment. In that connection it was pointed out that the period of 3 years mentioned in sub-section (4) of Section 11 of the Act had to be counted from the expiry of the period in relation to which the returns had been filed and on expiry of the said period the authorities could not proceed to make the best judgment assessment. The third and the last notice given on August 18, 1959 was taken to be a notice to the dealer the assessing authority was proceeding to make the best judgment assessment and since this was done more than 3 years after expiry of all the 8 quarters in respect of the two years it was held to be without jurisdiction and the respondent was restrained from making any best judgment assessment on the petitioner for sales tax for any quarter of the financial years 1954-55 and 1955-56. The decision of this Court in Madan Lal Aroras case justifies our apprehension which we have mentioned in the beginning of our judgment to the effect that if a dealer fails to comply with the notice issued under section 11(2) of the Act, then in such a case, even though there may not be any time limit for issuance of a notice, but on the dealers failure to comply with it the assessing authority may be obliged to take recourse to sub-section (4) attracting the bar of limitation of 5 years for proceeding to assess on the best judgment basis. The majority, however, was wrong when they said at page 949 of 15 S.T.C. with reference to Madan Lal Aroras case :"In the case before the Supreme Court, two notices were within three years and the third notice was beyond three years and their Lordships held that the third notice being beyond three years, the Assessing Authority had no jurisdiction to make to assessment. If the phrase "proceed to assess" bears the meaning which the learned counsel for the State contends for, namely, that only a step towards assessment has to be taken and the assessment can be made at any time after the period of three years, their Lordships would, on the basis of the two notices within the period of limitation, have come to a different conclusion and that is not what has been done." This was, it appears to us, clearly a mistaken reading of the judgment of this Court. The majority in our opinion, was also wrong in importing the period of limitation provided in sub-sections (4), (5) and (6) of section 11 of the Act into sub-section (3) must also be completed within 3 years from the last date on which the return should be filed under the Act. We are again constrained to point out that the majority of the Full Bench committed a mistake in thinking that this Court had held in Madan Lal Aroras case that the period of 3 years had to be counted from the last date on which the return should be filed. The decision of the Full Bench of the Punjab High Court in the case of Rameshwar Lals case (supra) is clearly erroneous and must be over-ruled. Pandit, J. in his dissenting opinion had, by and large, taken a correct view in favour of the Revenue. 13. Lastly, we may also make a reference to a recent decision of this Court delivered by one of us (Untwalia, J, ) in the case of Gurbaksh Singh vs. Union of India & Others. An argument quite similar to the one advanced before us was advanced on behalf of the assessee appellant in that case before this Court. It was argued that the period of 4 years of limitation prescribed under sub-section (2a) of section 11 of the Bengal Finance (Sales Tax) Act, 1941 as extended to the Union Territory of Delhi, should be imported into the revisional and the appellate power of the authorities conferred on them under section 20. This argument was repelled and it was pointed out that the legislature had not provided any period within which an order was to be made by an Appellate or Revisional authority; no such period should be imported in the exercise of the power on the basis of section 11(2a). Mr. Desai relied upon the pen-ultimate paragraph of this decision in support of his contention that in any view of the matter notice under section 11(2) had to be issued and the assessment completed within a reasonable time. We do not accept this contention to be sound. The argument as presented cannot be accepted to be correct. In Gurbaksh Singhs case it was not stated that the exercise of the revisional power suo moto could not be made after an undue long delay. On such an assumption it was merely found as a fact that there was no undue delay in the suo moto exercise of the power.
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This was, it appears to us, clearly a mistaken reading of the judgment of this Court. The majority in our opinion, was also wrong in importing the period of limitation provided ins (4), (5) and (6) of section 11 of the Act inton (3) must also be completed within 3 years from the last date on which the return should be filed under the Act. We are again constrained to point out that the majority of the Full Bench committed a mistake in thinking that this Court had held in Madan Lal Aroras case that the period of 3 years had to be counted from the last date on which the return should be filed. The decision of the Full Bench of the Punjab High Court in the case of Rameshwar Lals case (supra) is clearly erroneous and must be. Pandit, J. in his dissenting opinion had, by and large, taken a correct view in favour of the Revenue13. Lastly, we may also make a reference to a recent decision of this Court delivered by one of us (Untwalia, J, ) in the case of Gurbaksh Singh vs. Union of India & Others. An argument quite similar to the one advanced before us was advanced on behalf of the assessee appellant in that case before this Court. It was argued that the period of 4 years of limitation prescribed undern (2a) of section 11 of the Bengal Finance (Sales Tax) Act, 1941 as extended to the Union Territory of Delhi, should be imported into the revisional and the appellate power of the authorities conferred on them under section 20. This argument was repelled and it was pointed out that the legislature had not provided any period within which an order was to be made by an Appellate or Revisional authority; no such period should be imported in the exercise of the power on the basis of section 11(2a). Mr. Desai relied upon thee paragraph of this decision in support of his contention that in any view of the matter notice under section 11(2) had to be issued and the assessment completed within a reasonable time. We do not accept this contention to be sound. The argument as presented cannot be accepted to be correct. In Gurbaksh Singhs case it was not stated that the exercise of the revisional power suo moto could not be made after an undue long delay. On such an assumption it was merely found as a fact that there was no undue delay in the suo moto exercise of the powerThis was, it appears to us, clearly a mistaken reading of the judgment of this Court. The majority in our opinion, was also wrong in importing the period of limitation provided ins (4), (5) and (6) of section 11 of the Act inton (3) must also be completed within 3 years from the last date on which the return should be filed under the Act. We are again constrained to point out that the majority of the Full Bench committed a mistake in thinking that this Court had held in Madan Lal Aroras case that the period of 3 years had to be counted from the last date on which the return should be filed. The decision of the Full Bench of the Punjab High Court in the case of Rameshwar Lals case (supra) is clearly erroneous and must be. Pandit, J. in his dissenting opinion had, by and large, taken a correct view in favour of the
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S.P. MISRA Vs. MOHD.LAIQUDDIN KHAN | Adiga v. Gowri and Others (2017) 4 SCC 97 , on which strong reliance is placed by Sri. A.Subba Rao, learned counsel appearing for the appellants, would not render any assistance to support his case, having regard to facts of the case on hand and the rights litigated in the Suit in O.S. No. 580 of 1988, before the II Senior Civil Judge, City Civil Court, Hyderabad. In the case of fPrabhakara Adiga (2017) 4 SCC 97 , plaintiff was allotted suit scheduled property in a registered partnership deed and he was in possession thereof. The defendant, on partition in the family, had been allotted a portion of the land. When there was interference on the suit scheduled property, which fell to the share of plaintiff, as per the registered partnership deed, a suit for permanent injunction was filed. 20. In the aforesaid case, after suffering decree for permanent injunction, judgment-debtor died. When the heirs of the judgment-debtor in violation of the decree for permanent injunction tried to forcibly dispossesess the decree-holder, decree-holder filed the Execution Petition. The Executing Court held that heirs of the judgment-debtor were not bound by the decree. When such order is questioned before the High Court, the Writ Petition is allowed. The High Court held that decree of permanent injunction cannot be enforced against the legal heirs of judgment-debtor, as an injunction does not travel with the land. This Court, by referring to provision under Section 50 of C.P.C. read with Order 21 Rule 32 of C.P.C, has held that such a decree can be executed against the legal representatives. But, at the same time, the paragraph 25 of the judgment, which is relied on by Sri. B. Adi Narayana Rao, learned senior counsel appearing for the respondents, reads as under: 25. In our considered opinion the right which had been adjudicated in the suit in the present matter and the findings which have been recorded as basis for grant of injunction as to the disputed property which is heritable and partible would enure not only to the benefit of the legal heir of decree-holders but also would bind the legal representatives of the judgment-debtor. It is apparent from Section 50 CPC that when a judgment- debtor dies before the decree has been satisfied, it can be executed against legal representatives. Section 50 is not confined to a particular kind of decree. Decree for injunction can also be executed against legal representatives of the deceased judgment-debtor. The maxim actio personalis moritur cum persona is limited to certain class of cases as indicated by this Court in Girijanandini Devi v. Bijendra Narain Choudhary [Girijanandini Devi v. Bijendra Narain Choudhary, AIR 1967 SC 1124 ] and when the right litigated upon is heritable, the decree would not normally abate and can be enforced by legal representatives of decree-holder and against the judgment-debtor or his legal representatives. It would be against the public policy to ask the decree-holder to litigate once over again against the legal representatives of the judgment- debtor when the cause and injunction survives. No doubt, it is true that a decree for injunction normally does not run with the land. In the absence of statutory provisions it cannot be enforced. However, in view of the specific provisions contained in Section 50 CPC, such a decree can be executed against legal representatives. 21. From a reading of the aforesaid judgment, it is clear that the executable decree depend on the rights litigated by the parties. In the case on hand, the original decree was obtained against the predecessor of the respondents, who was party to partnership deed. In view of death of one of the partners, the partnership itself stands dissolved statutorily, by operation of law, in view of provision under Section 42(c) of the Indian Partnership Act, 1932. When the respondents are not parties to the partnership firm, they are not bound by the decree obtained by the predecessor of the appellant. More so, when it is a case of the respondents that they have not derived any assets and liabilities arising out of the partnership firm, decree obtained by the original plaintiff is not executable against the respondents. 22. It is also to be noticed that during the life time of late Smt. Hashmatunnisa Begum, she also filed Suit in O.S. No. 1061 of 1990 on the file of VII Senior Civil Judge, City Civil Court, Hyderabad, for dissolution of partnership firm constituted under deed of partnership dated 26.06.1977 and also for rendition of accounts. It is true that same is a different partnership but, parties are same. In such suit filed by late Smt.Hashmatunnisa Begum, predecessor of the appellants Late Sri Jai Narayan Misra, filed IA No. 1649 of 1997, to dismiss the said suit, claiming that in view of death of one of the partners, during the pendency of the suit, there is no room for third party to be introduced. It was the case of late Sri Jai Narayan Misra that partnership stood dissolved. However, in a similar situation arising out of partnership deed dated 14.04.1982, the appellants claim the decree is executable against the respondents, who are the legal heirs of the judgment-debtor. As much as, we are of the view that the respondents were not parties to the partnership deed and that the partnership stands dissolved, in view of death of one of the partners, the respondents have not derived the benefit of assets of the partnership firm, the decree obtained by the predecessor of the appellants, is not executable against the respondents herein. 23. In view of the same, we are of the view that the Trial Court has rightly allowed the application filed by the respondents under Section 47 of C.P.C. and there is no error committed by the High Court, in confirming such order by dismissing the Civil Revision Petition filed by the appellants herein. 24. We do not find any merit in this appeal so as to interfere in the impugned well reasoned order. | 0[ds]15. From a perusal of the relief sought for in the Execution Petition, by the legal heirs of the original plaintiff, itself makes it clear that reliefs sought in Execution Petition are going beyond the scope of the decree. It is fairly well- settled that, the Executing Court cannot travel beyond the decree. The only question which fell for consideration before the Trial Court in E.A. No. 6 of 2005, was whether the decree obtained by the predecessor of the appellants, can be executed against the appellants or not16. In the case on hand, as much as there were only two partners, the partnership itself stand dissolved, in view of death of a partner17. It is true that as per the deed of partnership, the partners have agreed, in the event of death of either party, their respective legal representatives shall automatically become partners in the partnership firm and they shall continue to act as partners of the firm, till the venture envisaged under said partnership is completed and such legal representatives who become partners shall have the same rights and shall be subject to same liabilities and responsibilities, as the deceased partner18. At this stage, it is to be noticed that once the partnership comes to an end, by virtue of death of one of the partners, there will not be any partnership existing in which legal representatives of late Smt. Hashmatunnisa Begum could be taken in. The judgment and decree obtained by late Sri Jai Narayan Misra against late Smt. Hashmatunnisa Begum, in pursuance of partnership deed dated 14.04.1982, cannot bind the legal representatives of late Smt. Hashmatunnisa Begum, as such, decree is not executable against them. The legal representatives of late Smt. Hashmatunnisa Begum are not the partners of the original partnership deed dated14.04.1982. When such legal representative are not parties to the contract, such contract cannot confer rights or impose obligations arising under it on any third party, except parties to it. No one but theparties to the contract can be entitled under it or born by it. Such principle is known as Privity of Contract. When the partnership stands dissolved by operation of law under Section 42(c) of the Indian Partnership Act, 1932, the question of execution in pursuance of the decree does not arise. There cannot be any contract unilaterally without acceptance and agreement by the legal heirs of the deceased partner. If there are any clauses in the agreement, entered into between the original partners, against the third parties, such clauses will not bind them, such of the clauses in the partnership deed, which run contrary to provisions of Indian Partnership Act, 1932, are void and unenforceable. Such clauses are also opposed to public policy19. In the case of Prabhakara Adiga v. Gowri and Others (2017) 4 SCC 97 , on which strong reliance is placed by Sri. A.Subba Rao, learned counsel appearing for the appellants, would not render any assistance to support his case, having regard to facts of the case on hand and the rights litigated in the Suit in O.S. No. 580 of 1988, before the II Senior Civil Judge, City Civil Court, Hyderabad. In the case of21. From a reading of the aforesaid judgment, it is clear that the executable decree depend on the rights litigated by the parties. In the case on hand, the original decree was obtained against the predecessor of the respondents, who was party to partnership deed. In view of death of one of the partners, the partnership itself stands dissolved statutorily, by operation of law, in view of provision under Section 42(c) of the Indian Partnership Act, 1932. When the respondents are not parties to the partnership firm, they are not bound by the decree obtained by the predecessor of the appellant. More so, when it is a case of the respondents that they have not derived any assets and liabilities arising out of the partnership firm, decree obtained by the original plaintiff is not executable against the respondents22. It is also to be noticed that during the life time of late Smt. Hashmatunnisa Begum, she also filed Suit in O.S. No. 1061 of 1990 on the file of VII Senior Civil Judge, City Civil Court, Hyderabad, for dissolution of partnership firm constituted under deed of partnership dated 26.06.1977 and also for rendition of accounts. It is true that same is a different partnership but, parties are same. In such suit filed by late Smt.Hashmatunnisa Begum, predecessor of the appellants Late Sri Jai Narayan Misra, filed IA No. 1649 of 1997, to dismiss the said suit, claiming that in view of death of one of the partners, during the pendency of the suit, there is no room for third party to be introduced. It was the case of late Sri Jai Narayan Misra that partnership stood dissolved. However, in a similar situation arising out of partnership deed dated 14.04.1982, the appellants claim the decree is executable against the respondents, who are the legal heirs of the judgment-debtor. As much as, we are of the view that the respondents were not parties to the partnership deed and that the partnership stands dissolved, in view of death of one of the partners, the respondents have not derived the benefit of assets of the partnership firm, the decree obtained by the predecessor of the appellants, is not executable against the respondents herein23. In view of the same, we are of the view that the Trial Court has rightly allowed the application filed by the respondents under Section 47 of C.P.C. and there is no error committed by the High Court, in confirming such order by dismissing the Civil Revision Petition filed by the appellants herein16. In the case on hand, as much as there were only two partners, the partnership itself stand dissolved, in view of death of a partner17. It is true that as per the deed of partnership, the partners have agreed, in the event of death of either party, their respective legal representatives shall automatically become partners in the partnership firm and they shall continue to act as partners of the firm, till the venture envisaged under said partnership is completed and such legal representatives who become partners shall have the same rights and shall be subject to same liabilities and responsibilities, as the deceased partner. When such legal representative are not parties to the contract, such contract cannot confer rights or impose obligations arising under it on any third party, except parties to it. No one but theparties to the contract can be entitled under it or born by it. Such principle is known as Privity of Contract. When the partnership stands dissolved by operation of law under Section 42(c) of the Indian Partnership Act, 1932, the question of execution in pursuance of the decree does not arise. There cannot be any contract unilaterally without acceptance and agreement by the legal heirs of the deceased partner. If there are any clauses in the agreement, entered into between the original partners, against the third parties, such clauses will not bind them, such of the clauses in the partnership deed, which run contrary to provisions of Indian Partnership Act, 1932, are void and unenforceable. Such clauses are also opposed to public | 0 | 3,433 | 1,366 | ### Instruction:
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Adiga v. Gowri and Others (2017) 4 SCC 97 , on which strong reliance is placed by Sri. A.Subba Rao, learned counsel appearing for the appellants, would not render any assistance to support his case, having regard to facts of the case on hand and the rights litigated in the Suit in O.S. No. 580 of 1988, before the II Senior Civil Judge, City Civil Court, Hyderabad. In the case of fPrabhakara Adiga (2017) 4 SCC 97 , plaintiff was allotted suit scheduled property in a registered partnership deed and he was in possession thereof. The defendant, on partition in the family, had been allotted a portion of the land. When there was interference on the suit scheduled property, which fell to the share of plaintiff, as per the registered partnership deed, a suit for permanent injunction was filed. 20. In the aforesaid case, after suffering decree for permanent injunction, judgment-debtor died. When the heirs of the judgment-debtor in violation of the decree for permanent injunction tried to forcibly dispossesess the decree-holder, decree-holder filed the Execution Petition. The Executing Court held that heirs of the judgment-debtor were not bound by the decree. When such order is questioned before the High Court, the Writ Petition is allowed. The High Court held that decree of permanent injunction cannot be enforced against the legal heirs of judgment-debtor, as an injunction does not travel with the land. This Court, by referring to provision under Section 50 of C.P.C. read with Order 21 Rule 32 of C.P.C, has held that such a decree can be executed against the legal representatives. But, at the same time, the paragraph 25 of the judgment, which is relied on by Sri. B. Adi Narayana Rao, learned senior counsel appearing for the respondents, reads as under: 25. In our considered opinion the right which had been adjudicated in the suit in the present matter and the findings which have been recorded as basis for grant of injunction as to the disputed property which is heritable and partible would enure not only to the benefit of the legal heir of decree-holders but also would bind the legal representatives of the judgment-debtor. It is apparent from Section 50 CPC that when a judgment- debtor dies before the decree has been satisfied, it can be executed against legal representatives. Section 50 is not confined to a particular kind of decree. Decree for injunction can also be executed against legal representatives of the deceased judgment-debtor. The maxim actio personalis moritur cum persona is limited to certain class of cases as indicated by this Court in Girijanandini Devi v. Bijendra Narain Choudhary [Girijanandini Devi v. Bijendra Narain Choudhary, AIR 1967 SC 1124 ] and when the right litigated upon is heritable, the decree would not normally abate and can be enforced by legal representatives of decree-holder and against the judgment-debtor or his legal representatives. It would be against the public policy to ask the decree-holder to litigate once over again against the legal representatives of the judgment- debtor when the cause and injunction survives. No doubt, it is true that a decree for injunction normally does not run with the land. In the absence of statutory provisions it cannot be enforced. However, in view of the specific provisions contained in Section 50 CPC, such a decree can be executed against legal representatives. 21. From a reading of the aforesaid judgment, it is clear that the executable decree depend on the rights litigated by the parties. In the case on hand, the original decree was obtained against the predecessor of the respondents, who was party to partnership deed. In view of death of one of the partners, the partnership itself stands dissolved statutorily, by operation of law, in view of provision under Section 42(c) of the Indian Partnership Act, 1932. When the respondents are not parties to the partnership firm, they are not bound by the decree obtained by the predecessor of the appellant. More so, when it is a case of the respondents that they have not derived any assets and liabilities arising out of the partnership firm, decree obtained by the original plaintiff is not executable against the respondents. 22. It is also to be noticed that during the life time of late Smt. Hashmatunnisa Begum, she also filed Suit in O.S. No. 1061 of 1990 on the file of VII Senior Civil Judge, City Civil Court, Hyderabad, for dissolution of partnership firm constituted under deed of partnership dated 26.06.1977 and also for rendition of accounts. It is true that same is a different partnership but, parties are same. In such suit filed by late Smt.Hashmatunnisa Begum, predecessor of the appellants Late Sri Jai Narayan Misra, filed IA No. 1649 of 1997, to dismiss the said suit, claiming that in view of death of one of the partners, during the pendency of the suit, there is no room for third party to be introduced. It was the case of late Sri Jai Narayan Misra that partnership stood dissolved. However, in a similar situation arising out of partnership deed dated 14.04.1982, the appellants claim the decree is executable against the respondents, who are the legal heirs of the judgment-debtor. As much as, we are of the view that the respondents were not parties to the partnership deed and that the partnership stands dissolved, in view of death of one of the partners, the respondents have not derived the benefit of assets of the partnership firm, the decree obtained by the predecessor of the appellants, is not executable against the respondents herein. 23. In view of the same, we are of the view that the Trial Court has rightly allowed the application filed by the respondents under Section 47 of C.P.C. and there is no error committed by the High Court, in confirming such order by dismissing the Civil Revision Petition filed by the appellants herein. 24. We do not find any merit in this appeal so as to interfere in the impugned well reasoned order.
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0
### Explanation:
end, by virtue of death of one of the partners, there will not be any partnership existing in which legal representatives of late Smt. Hashmatunnisa Begum could be taken in. The judgment and decree obtained by late Sri Jai Narayan Misra against late Smt. Hashmatunnisa Begum, in pursuance of partnership deed dated 14.04.1982, cannot bind the legal representatives of late Smt. Hashmatunnisa Begum, as such, decree is not executable against them. The legal representatives of late Smt. Hashmatunnisa Begum are not the partners of the original partnership deed dated14.04.1982. When such legal representative are not parties to the contract, such contract cannot confer rights or impose obligations arising under it on any third party, except parties to it. No one but theparties to the contract can be entitled under it or born by it. Such principle is known as Privity of Contract. When the partnership stands dissolved by operation of law under Section 42(c) of the Indian Partnership Act, 1932, the question of execution in pursuance of the decree does not arise. There cannot be any contract unilaterally without acceptance and agreement by the legal heirs of the deceased partner. If there are any clauses in the agreement, entered into between the original partners, against the third parties, such clauses will not bind them, such of the clauses in the partnership deed, which run contrary to provisions of Indian Partnership Act, 1932, are void and unenforceable. Such clauses are also opposed to public policy19. In the case of Prabhakara Adiga v. Gowri and Others (2017) 4 SCC 97 , on which strong reliance is placed by Sri. A.Subba Rao, learned counsel appearing for the appellants, would not render any assistance to support his case, having regard to facts of the case on hand and the rights litigated in the Suit in O.S. No. 580 of 1988, before the II Senior Civil Judge, City Civil Court, Hyderabad. In the case of21. From a reading of the aforesaid judgment, it is clear that the executable decree depend on the rights litigated by the parties. In the case on hand, the original decree was obtained against the predecessor of the respondents, who was party to partnership deed. In view of death of one of the partners, the partnership itself stands dissolved statutorily, by operation of law, in view of provision under Section 42(c) of the Indian Partnership Act, 1932. When the respondents are not parties to the partnership firm, they are not bound by the decree obtained by the predecessor of the appellant. More so, when it is a case of the respondents that they have not derived any assets and liabilities arising out of the partnership firm, decree obtained by the original plaintiff is not executable against the respondents22. It is also to be noticed that during the life time of late Smt. Hashmatunnisa Begum, she also filed Suit in O.S. No. 1061 of 1990 on the file of VII Senior Civil Judge, City Civil Court, Hyderabad, for dissolution of partnership firm constituted under deed of partnership dated 26.06.1977 and also for rendition of accounts. It is true that same is a different partnership but, parties are same. In such suit filed by late Smt.Hashmatunnisa Begum, predecessor of the appellants Late Sri Jai Narayan Misra, filed IA No. 1649 of 1997, to dismiss the said suit, claiming that in view of death of one of the partners, during the pendency of the suit, there is no room for third party to be introduced. It was the case of late Sri Jai Narayan Misra that partnership stood dissolved. However, in a similar situation arising out of partnership deed dated 14.04.1982, the appellants claim the decree is executable against the respondents, who are the legal heirs of the judgment-debtor. As much as, we are of the view that the respondents were not parties to the partnership deed and that the partnership stands dissolved, in view of death of one of the partners, the respondents have not derived the benefit of assets of the partnership firm, the decree obtained by the predecessor of the appellants, is not executable against the respondents herein23. In view of the same, we are of the view that the Trial Court has rightly allowed the application filed by the respondents under Section 47 of C.P.C. and there is no error committed by the High Court, in confirming such order by dismissing the Civil Revision Petition filed by the appellants herein16. In the case on hand, as much as there were only two partners, the partnership itself stand dissolved, in view of death of a partner17. It is true that as per the deed of partnership, the partners have agreed, in the event of death of either party, their respective legal representatives shall automatically become partners in the partnership firm and they shall continue to act as partners of the firm, till the venture envisaged under said partnership is completed and such legal representatives who become partners shall have the same rights and shall be subject to same liabilities and responsibilities, as the deceased partner. When such legal representative are not parties to the contract, such contract cannot confer rights or impose obligations arising under it on any third party, except parties to it. No one but theparties to the contract can be entitled under it or born by it. Such principle is known as Privity of Contract. When the partnership stands dissolved by operation of law under Section 42(c) of the Indian Partnership Act, 1932, the question of execution in pursuance of the decree does not arise. There cannot be any contract unilaterally without acceptance and agreement by the legal heirs of the deceased partner. If there are any clauses in the agreement, entered into between the original partners, against the third parties, such clauses will not bind them, such of the clauses in the partnership deed, which run contrary to provisions of Indian Partnership Act, 1932, are void and unenforceable. Such clauses are also opposed to public
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Sanjay Shivaji Dhapse Vs. The State of Maharashtra | Oral Judgment: (S.S. Shinde, J.)1. When the matter was called out, none appeared for the petitioner. Learned A.P.P. for respondent State and learned Counsel appearing for respondent no.3 are present.2. This Criminal Writ Petition is filed, seeking direction to respondent Nos.4 and 5 to register an offense as per complaint dated 29th March, 2005 and 8th April, 2005, lodged by the petitioner. Copy of the complaint is placed on record by the petitioner at Exh.D (page No.24 of the compilation of the writ petition). It appears that the grievance of the petitioner, as reflected in the said complaint, is that the Insurance Company did not affix adequate stamp, as is required, as per relevant Rules. As per the contents of the complaint, the Insurance Company was obliged to affix stamp of Rs.10/- on the policy of Rs.1,00,000/-, however, the Company did affix stamp of Re.1/- and, according to the petitioner i.e. the complainant, thereby, the Insurance Company cheated the Government for its own benefit. The said act of the Company is very serious and has caused loss of revenue to the Government and, therefore, inquiry should be made about the said allegations and appropriate action may be taken against the Insurance Company.3. In pursuance to notices issued in the petition, the respondents have filed replies. It is the contention of the learned Counsel appearing for the respondent company that the Company did affix stamp of appropriate amount as per the Rules. It is submitted that even if allegations in the complaint are taken as it is, without admitting that the Company did not affix the stamp of sufficient amount as per the Rules, at the most, it would amount to an irregularity. It is submitted that respondent no.1 has filed affidavit in reply stating therein that in case there is any lapse on the part of the Insurance Company, it is for the officers from the Government Department to verify and ask the Insurance Company to affix deficit stamp, if any.Learned A.P.P. appearing for the State invited our attention to the affidavit in reply filed by the State and submits that the concerned Department did issue notice to the Insurance Company and, in response to the said notice, the Company did pay the deficit stamp duty. Therefore, learned A.P.P. submits that the complaint was not proceeded further.4. The learned Counsel appearing for the petitioner, is not present. With the able assistance of learned A.P.P. and learned Counsel for respondent no.3, we have perused the petition, annexures thereto and replies filed by the State as well as the Insurance Company. In the first place, as rightly contended by learned A.P.P., in pursuance to the notices issued to the Insurance Company, the Insurance Company did pay deficit stamp duty. Secondly, upon reading the contents of the complaint, in its entirety, not affixing stamp of adequate amount would attract irregularity and it is always subject to verification / check by the concerned Government Department.In the facts of the present case, in response to the notices issued by the concerned Government Department, the deficit stamp duty is paid by the Insurance Company. Even if it is assumed for the moment that some amount is to be deposited by the Insurance Company, it is always open for the concerned Department to put forth a demand and in response to the same, the Insurance Company has to pay the same.Therefore, in our considered view, in the peculiar facts and circumstances of this case, the grievance raised in the complaint would not survive further.Counsel appearing for respondent no.3 has tendered across the Bar copy of order passed by Division Bench of this Court on 2nd July, 2009 in Writ Petition No.7613/2005 and submits that in the said writ petition also, the petitioner did raise similar contentions with identical prayers and said writ petition was disposed of. | 0[ds]4. The learned Counsel appearing for the petitioner, is not present. With the able assistance of learned A.P.P. and learned Counsel for respondent no.3, we have perused the petition, annexures thereto and replies filed by the State as well as the Insurance Company. In the first place, as rightly contended by learned A.P.P., in pursuance to the notices issued to the Insurance Company, the Insurance Company did pay deficit stamp duty. Secondly, upon reading the contents of the complaint, in its entirety, not affixing stamp of adequate amount would attract irregularity and it is always subject to verification / check by the concerned Government Department.In the facts of the present case, in response to the notices issued by the concerned Government Department, the deficit stamp duty is paid by the Insurance Company. Even if it is assumed for the moment that some amount is to be deposited by the Insurance Company, it is always open for the concerned Department to put forth a demand and in response to the same, the Insurance Company has to pay the same.Therefore, in our considered view, in the peculiar facts and circumstances of this case, the grievance raised in the complaint would not survive further. | 0 | 713 | 228 | ### 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:
Oral Judgment: (S.S. Shinde, J.)1. When the matter was called out, none appeared for the petitioner. Learned A.P.P. for respondent State and learned Counsel appearing for respondent no.3 are present.2. This Criminal Writ Petition is filed, seeking direction to respondent Nos.4 and 5 to register an offense as per complaint dated 29th March, 2005 and 8th April, 2005, lodged by the petitioner. Copy of the complaint is placed on record by the petitioner at Exh.D (page No.24 of the compilation of the writ petition). It appears that the grievance of the petitioner, as reflected in the said complaint, is that the Insurance Company did not affix adequate stamp, as is required, as per relevant Rules. As per the contents of the complaint, the Insurance Company was obliged to affix stamp of Rs.10/- on the policy of Rs.1,00,000/-, however, the Company did affix stamp of Re.1/- and, according to the petitioner i.e. the complainant, thereby, the Insurance Company cheated the Government for its own benefit. The said act of the Company is very serious and has caused loss of revenue to the Government and, therefore, inquiry should be made about the said allegations and appropriate action may be taken against the Insurance Company.3. In pursuance to notices issued in the petition, the respondents have filed replies. It is the contention of the learned Counsel appearing for the respondent company that the Company did affix stamp of appropriate amount as per the Rules. It is submitted that even if allegations in the complaint are taken as it is, without admitting that the Company did not affix the stamp of sufficient amount as per the Rules, at the most, it would amount to an irregularity. It is submitted that respondent no.1 has filed affidavit in reply stating therein that in case there is any lapse on the part of the Insurance Company, it is for the officers from the Government Department to verify and ask the Insurance Company to affix deficit stamp, if any.Learned A.P.P. appearing for the State invited our attention to the affidavit in reply filed by the State and submits that the concerned Department did issue notice to the Insurance Company and, in response to the said notice, the Company did pay the deficit stamp duty. Therefore, learned A.P.P. submits that the complaint was not proceeded further.4. The learned Counsel appearing for the petitioner, is not present. With the able assistance of learned A.P.P. and learned Counsel for respondent no.3, we have perused the petition, annexures thereto and replies filed by the State as well as the Insurance Company. In the first place, as rightly contended by learned A.P.P., in pursuance to the notices issued to the Insurance Company, the Insurance Company did pay deficit stamp duty. Secondly, upon reading the contents of the complaint, in its entirety, not affixing stamp of adequate amount would attract irregularity and it is always subject to verification / check by the concerned Government Department.In the facts of the present case, in response to the notices issued by the concerned Government Department, the deficit stamp duty is paid by the Insurance Company. Even if it is assumed for the moment that some amount is to be deposited by the Insurance Company, it is always open for the concerned Department to put forth a demand and in response to the same, the Insurance Company has to pay the same.Therefore, in our considered view, in the peculiar facts and circumstances of this case, the grievance raised in the complaint would not survive further.Counsel appearing for respondent no.3 has tendered across the Bar copy of order passed by Division Bench of this Court on 2nd July, 2009 in Writ Petition No.7613/2005 and submits that in the said writ petition also, the petitioner did raise similar contentions with identical prayers and said writ petition was disposed of.
### Response:
0
### Explanation:
4. The learned Counsel appearing for the petitioner, is not present. With the able assistance of learned A.P.P. and learned Counsel for respondent no.3, we have perused the petition, annexures thereto and replies filed by the State as well as the Insurance Company. In the first place, as rightly contended by learned A.P.P., in pursuance to the notices issued to the Insurance Company, the Insurance Company did pay deficit stamp duty. Secondly, upon reading the contents of the complaint, in its entirety, not affixing stamp of adequate amount would attract irregularity and it is always subject to verification / check by the concerned Government Department.In the facts of the present case, in response to the notices issued by the concerned Government Department, the deficit stamp duty is paid by the Insurance Company. Even if it is assumed for the moment that some amount is to be deposited by the Insurance Company, it is always open for the concerned Department to put forth a demand and in response to the same, the Insurance Company has to pay the same.Therefore, in our considered view, in the peculiar facts and circumstances of this case, the grievance raised in the complaint would not survive further.
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Ahmedabad Pvt. Primary Teachers' Association Vs. Administrative Officer | under S.1(3)(c) of the Act of 1972, is that such non teaching staff of educational institutions as answer the description of any of the employment contained in the definition Clause.2(e), would be covered by the provisions of the Act. The teaching staff being not covered by the definition of ‘employee’ can get no advantage merely because by notification ‘educational institutions’ as establishments are covered by the provisions of the Act. 21. Having thus compared the various definition clauses of word ‘employee’ in different enactments, with due regard to the different aims and objects of the various labour legislations, we are of the view that even on plain construction of the words and expression used in definition Clause.2(e) of the Act, ‘teachers’ who are mainly employed for imparting education are not intended to be covered for extending gratuity benefits under the Act. Teachers do not answer description of being employees who are ‘skilled,’ ‘semiskilled’ or ‘unskilled.’ These three words used in association with each other intend to convey that a person who is ‘unskilled’ is one who is not ‘skilled’ and a person who is ‘semi-skilled’ may be one who falls between two categories meaning he is neither fully skilled nor unskilled. The Black’s Law Dictionary defines these three words as under :- “Semi-skilled work. Work that may require some alertness and close attention, such as inspecting items or machinery for irregularities, or guarding property or people against loss or injury.Skilled work. Work requiring the worker to use judgment, deal with the public, analyse facts and figures, or work with abstract ideas at a high level of complexity.Unskilled work. Work requiring little or no judgment, and involving simple tasks that can be learned quickly on the job." 22. In construing the above mentioned three words which are used in association with each other, the rule of construction noscitur a sociis may be applied. The meaning of each of these words is to be understood by the company it keeps. It is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them. The actual order of these three words in juxtaposition indicates that meaning of one takes colour from the other. The rule is explained differently: ‘that meaning of doubtful words may be ascertained by reference to the meaning of words associated with it’. (See Principles of Statutory Interpretation by Justice G.P. Singh (8th Ed.), Syn.8 at pg.379).23. The word ‘unskilled’ is opposite of the word ‘skilled’ and the word ‘semi-skilled seems to describe a person who falls between the two categories i.e. he is not fully skilled and also is not completely unskilled but has some amount of skill for the work for which he is employed. The word ‘unskilled’ cannot, therefore, be understood dissociated from the word ‘skilled’ and ‘semiskilled’ to read and construe it to include in it all categories of employees irrespective of the nature of employment. If the Legislature intended to cover all categories of employees for extending benefit of gratuity under the Act, specific mention of categories of employment in the definition clause was not necessary at all. Any construction of definition clause which renders it superfluous or otiose has to be avoided.24. The contention advanced that teachers should be treated as included in expression ‘unskilled’ or ‘skilled’ cannot, therefore, be accepted. The teachers might have been imparted training for teaching or there may be cases where teachers who are employed in primary schools are untrained. A trained teacher is not described in industrial field or service jurisprudence as a ‘skilled employee’. Such adjective generally is used for employee doing manual or technical work. Similarly, the words ‘semiskilled’ and ‘unskilled’ are not understood in educational establishments as describing nature of job of untrained teachers. We do not attach much importance to the arguments advanced on the question as to whether ‘skilled’, ‘semi-skilled’ and ‘unskilled’ qualify the words ‘manual’, ‘supervisory’, ‘technical’ or ‘clerical’ or the above words qualify the word ‘work’. Even if all the words are reed disjunctively or in any other manner, trained or untrained teachers do not plainly answer any of the descriptions of the nature of various employment given in the definition clause. Trained or untrained teachers are not ‘skilled’, ‘semi-skilled’, ‘unskilled’, ‘manual’, ‘supervisory’, ‘technical’ or ‘clerical’ employees. They are also not employed in ‘managerial’ or ‘administrative’ capacity. Occasionally, even if they do some administrative work as part of their duty with teaching, since their main job is imparting education, they cannot be held employed in ‘managerial’ or ‘administrative’ capacity. The teachers are clearly not intended to be covered by the definition of ‘employee’. 25. The Legislature was alive to various kinds of definitions of word ‘employee’ contained in various previous labour enactment when the Act was passed in 1972. If it intended to cover in the definition of ‘employee’ all kinds of employees, it could have as well used such wide language as is contained in S.2(f) of the Employees’ Provident Funds Act, 1952 which defines ‘employee’ to mean ‘any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of (an establishment)’...... Non use of such wide language in the definition of ‘employee’ in S.2(e) of the Act of 1972 reinforces our conclusion that teachers are clearly not covered in the definition.26. Our conclusion should not be misunderstood that teachers although engaged in very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the Legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject matter solely of the Legislature to consider and decide. | 0[ds]6. The Act is a piece of social welfare legislation and deals with the payment of gratuity which is a kind of retiral benefit like pension, provident fund etc. As has been explained in the concurring opinion of one of the learned judges of the High Court ‘gratuity in its etymological sense is a gift, especially for services rendered, or return for favoursIt has now been universally recognized that all persons in society need protection against loss of income due to unemployment arising out of incapacity to work due to invalidity, old age etc. For the wage earning population, security of income, when the worker becomes old or infirm, is of consequential importance. The provisions contained in the Act are in the nature of social security measures like employment insurance, provident fund and pension. The Act accepts, in principle, compulsory payment of gratuity as a social security measure to wage earning population in industries, factories and establishments.7. Thus, the main purpose and concept of gratuity is to help the workman after retirement, whether, retirement is a result of rules of superannuation, or physical disablement or impairment of vital part of the body. The expression,itself suggests that it is a gratuitous payment given to an employee on discharge, superannuation or death. Gratuity is an amount paid unconnected with any consideration and not resting upon it, and has to be considered as something given freely, voluntarily or without recompense. It is sort of financial assistance to tide ever post retiral hardships and inconveniences.An educational institution, therefore, is annotified under S.1(3)(c) of the Payment of Gratuity Act,Having thus compared the various definition clauses of wordin different enactments, with due regard to the different aims and objects of the various labour legislations, we are of the view that even on plain construction of the words and expression used in definition Clause.2(e) of the Act,who are mainly employed for imparting education are not intended to be covered for extending gratuity benefits under the Act. Teachers do not answer description of being employees who areThese three words used in association with each other intend to convey that a person who isis one who is notand a person who ismay be one who falls between two categories meaning he is neither fully skilled nor unskilled. TheLaw Dictionary defines these three words as underwork. Work that may require some alertness and close attention, such as inspecting items or machinery for irregularities, or guarding property or people against loss or injury.Skilled work. Work requiring the worker to use judgment, deal with the public, analyse facts and figures, or work with abstract ideas at a high level of complexity.Unskilled work. Work requiring little or no judgment, and involving simple tasks that can be learned quickly on the job.In construing the above mentioned three words which are used in association with each other, the rule of construction noscitur a sociis may be applied. The meaning of each of these words is to be understood by the company it keeps. It is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them. The actual order of these three words in juxtaposition indicates that meaning of one takes colour from the other. The rule is explained differently: ‘that meaning of doubtful words may be ascertained by reference to the meaning of words associated with(See Principles of Statutory Interpretation by Justice G.P. Singh (8th Ed.), Syn.8 at pg.379).23. The wordis opposite of the wordand the wordseems to describe a person who falls between the two categories i.e. he is not fully skilled and also is not completely unskilled but has some amount of skill for the work for which he is employed. The wordcannot, therefore, be understood dissociated from the wordto read and construe it to include in it all categories of employees irrespective of the nature of employment. If the Legislature intended to cover all categories of employees for extending benefit of gratuity under the Act, specific mention of categories of employment in the definition clause was not necessary at all. Any construction of definition clause which renders it superfluous or otiose has to be avoided.24. The contention advanced that teachers should be treated as included in expressioncannot, therefore, be accepted. The teachers might have been imparted training for teaching or there may be cases where teachers who are employed in primary schools are untrained. A trained teacher is not described in industrial field or service jurisprudence as a ‘skilledSuch adjective generally is used for employee doing manual or technical work. Similarly, the wordsare not understood in educational establishments as describing nature of job of untrained teachers. We do not attach much importance to the arguments advanced on the question as to whetherqualify the wordsor the above words qualify the wordEven if all the words are reed disjunctively or in any other manner, trained or untrained teachers do not plainly answer any of the descriptions of the nature of various employment given in the definition clause. Trained or untrained teachers are notemployees. They are also not employed incapacity. Occasionally, even if they do some administrative work as part of their duty with teaching, since their main job is imparting education, they cannot be held employed inThe Legislature was alive to various kinds of definitions of wordcontained in various previous labour enactment when the Act was passed in 1972. If it intended to cover in the definition ofall kinds of employees, it could have as well used such wide language as is contained in S.2(f) of theProvident Funds Act, 1952 which definesto mean ‘any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of (anNon use of such wide language in the definition ofin S.2(e) of the Act of 1972 reinforces our conclusion that teachers are clearly not covered in the definition.26. Our conclusion should not be misunderstood that teachers although engaged in very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the Legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject matter solely of the Legislature to consider and decide. | 0 | 4,379 | 1,210 | ### 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:
under S.1(3)(c) of the Act of 1972, is that such non teaching staff of educational institutions as answer the description of any of the employment contained in the definition Clause.2(e), would be covered by the provisions of the Act. The teaching staff being not covered by the definition of ‘employee’ can get no advantage merely because by notification ‘educational institutions’ as establishments are covered by the provisions of the Act. 21. Having thus compared the various definition clauses of word ‘employee’ in different enactments, with due regard to the different aims and objects of the various labour legislations, we are of the view that even on plain construction of the words and expression used in definition Clause.2(e) of the Act, ‘teachers’ who are mainly employed for imparting education are not intended to be covered for extending gratuity benefits under the Act. Teachers do not answer description of being employees who are ‘skilled,’ ‘semiskilled’ or ‘unskilled.’ These three words used in association with each other intend to convey that a person who is ‘unskilled’ is one who is not ‘skilled’ and a person who is ‘semi-skilled’ may be one who falls between two categories meaning he is neither fully skilled nor unskilled. The Black’s Law Dictionary defines these three words as under :- “Semi-skilled work. Work that may require some alertness and close attention, such as inspecting items or machinery for irregularities, or guarding property or people against loss or injury.Skilled work. Work requiring the worker to use judgment, deal with the public, analyse facts and figures, or work with abstract ideas at a high level of complexity.Unskilled work. Work requiring little or no judgment, and involving simple tasks that can be learned quickly on the job." 22. In construing the above mentioned three words which are used in association with each other, the rule of construction noscitur a sociis may be applied. The meaning of each of these words is to be understood by the company it keeps. It is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them. The actual order of these three words in juxtaposition indicates that meaning of one takes colour from the other. The rule is explained differently: ‘that meaning of doubtful words may be ascertained by reference to the meaning of words associated with it’. (See Principles of Statutory Interpretation by Justice G.P. Singh (8th Ed.), Syn.8 at pg.379).23. The word ‘unskilled’ is opposite of the word ‘skilled’ and the word ‘semi-skilled seems to describe a person who falls between the two categories i.e. he is not fully skilled and also is not completely unskilled but has some amount of skill for the work for which he is employed. The word ‘unskilled’ cannot, therefore, be understood dissociated from the word ‘skilled’ and ‘semiskilled’ to read and construe it to include in it all categories of employees irrespective of the nature of employment. If the Legislature intended to cover all categories of employees for extending benefit of gratuity under the Act, specific mention of categories of employment in the definition clause was not necessary at all. Any construction of definition clause which renders it superfluous or otiose has to be avoided.24. The contention advanced that teachers should be treated as included in expression ‘unskilled’ or ‘skilled’ cannot, therefore, be accepted. The teachers might have been imparted training for teaching or there may be cases where teachers who are employed in primary schools are untrained. A trained teacher is not described in industrial field or service jurisprudence as a ‘skilled employee’. Such adjective generally is used for employee doing manual or technical work. Similarly, the words ‘semiskilled’ and ‘unskilled’ are not understood in educational establishments as describing nature of job of untrained teachers. We do not attach much importance to the arguments advanced on the question as to whether ‘skilled’, ‘semi-skilled’ and ‘unskilled’ qualify the words ‘manual’, ‘supervisory’, ‘technical’ or ‘clerical’ or the above words qualify the word ‘work’. Even if all the words are reed disjunctively or in any other manner, trained or untrained teachers do not plainly answer any of the descriptions of the nature of various employment given in the definition clause. Trained or untrained teachers are not ‘skilled’, ‘semi-skilled’, ‘unskilled’, ‘manual’, ‘supervisory’, ‘technical’ or ‘clerical’ employees. They are also not employed in ‘managerial’ or ‘administrative’ capacity. Occasionally, even if they do some administrative work as part of their duty with teaching, since their main job is imparting education, they cannot be held employed in ‘managerial’ or ‘administrative’ capacity. The teachers are clearly not intended to be covered by the definition of ‘employee’. 25. The Legislature was alive to various kinds of definitions of word ‘employee’ contained in various previous labour enactment when the Act was passed in 1972. If it intended to cover in the definition of ‘employee’ all kinds of employees, it could have as well used such wide language as is contained in S.2(f) of the Employees’ Provident Funds Act, 1952 which defines ‘employee’ to mean ‘any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of (an establishment)’...... Non use of such wide language in the definition of ‘employee’ in S.2(e) of the Act of 1972 reinforces our conclusion that teachers are clearly not covered in the definition.26. Our conclusion should not be misunderstood that teachers although engaged in very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the Legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject matter solely of the Legislature to consider and decide.
### Response:
0
### Explanation:
due to invalidity, old age etc. For the wage earning population, security of income, when the worker becomes old or infirm, is of consequential importance. The provisions contained in the Act are in the nature of social security measures like employment insurance, provident fund and pension. The Act accepts, in principle, compulsory payment of gratuity as a social security measure to wage earning population in industries, factories and establishments.7. Thus, the main purpose and concept of gratuity is to help the workman after retirement, whether, retirement is a result of rules of superannuation, or physical disablement or impairment of vital part of the body. The expression,itself suggests that it is a gratuitous payment given to an employee on discharge, superannuation or death. Gratuity is an amount paid unconnected with any consideration and not resting upon it, and has to be considered as something given freely, voluntarily or without recompense. It is sort of financial assistance to tide ever post retiral hardships and inconveniences.An educational institution, therefore, is annotified under S.1(3)(c) of the Payment of Gratuity Act,Having thus compared the various definition clauses of wordin different enactments, with due regard to the different aims and objects of the various labour legislations, we are of the view that even on plain construction of the words and expression used in definition Clause.2(e) of the Act,who are mainly employed for imparting education are not intended to be covered for extending gratuity benefits under the Act. Teachers do not answer description of being employees who areThese three words used in association with each other intend to convey that a person who isis one who is notand a person who ismay be one who falls between two categories meaning he is neither fully skilled nor unskilled. TheLaw Dictionary defines these three words as underwork. Work that may require some alertness and close attention, such as inspecting items or machinery for irregularities, or guarding property or people against loss or injury.Skilled work. Work requiring the worker to use judgment, deal with the public, analyse facts and figures, or work with abstract ideas at a high level of complexity.Unskilled work. Work requiring little or no judgment, and involving simple tasks that can be learned quickly on the job.In construing the above mentioned three words which are used in association with each other, the rule of construction noscitur a sociis may be applied. The meaning of each of these words is to be understood by the company it keeps. It is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them. The actual order of these three words in juxtaposition indicates that meaning of one takes colour from the other. The rule is explained differently: ‘that meaning of doubtful words may be ascertained by reference to the meaning of words associated with(See Principles of Statutory Interpretation by Justice G.P. Singh (8th Ed.), Syn.8 at pg.379).23. The wordis opposite of the wordand the wordseems to describe a person who falls between the two categories i.e. he is not fully skilled and also is not completely unskilled but has some amount of skill for the work for which he is employed. The wordcannot, therefore, be understood dissociated from the wordto read and construe it to include in it all categories of employees irrespective of the nature of employment. If the Legislature intended to cover all categories of employees for extending benefit of gratuity under the Act, specific mention of categories of employment in the definition clause was not necessary at all. Any construction of definition clause which renders it superfluous or otiose has to be avoided.24. The contention advanced that teachers should be treated as included in expressioncannot, therefore, be accepted. The teachers might have been imparted training for teaching or there may be cases where teachers who are employed in primary schools are untrained. A trained teacher is not described in industrial field or service jurisprudence as a ‘skilledSuch adjective generally is used for employee doing manual or technical work. Similarly, the wordsare not understood in educational establishments as describing nature of job of untrained teachers. We do not attach much importance to the arguments advanced on the question as to whetherqualify the wordsor the above words qualify the wordEven if all the words are reed disjunctively or in any other manner, trained or untrained teachers do not plainly answer any of the descriptions of the nature of various employment given in the definition clause. Trained or untrained teachers are notemployees. They are also not employed incapacity. Occasionally, even if they do some administrative work as part of their duty with teaching, since their main job is imparting education, they cannot be held employed inThe Legislature was alive to various kinds of definitions of wordcontained in various previous labour enactment when the Act was passed in 1972. If it intended to cover in the definition ofall kinds of employees, it could have as well used such wide language as is contained in S.2(f) of theProvident Funds Act, 1952 which definesto mean ‘any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of (anNon use of such wide language in the definition ofin S.2(e) of the Act of 1972 reinforces our conclusion that teachers are clearly not covered in the definition.26. Our conclusion should not be misunderstood that teachers although engaged in very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the Legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject matter solely of the Legislature to consider and decide.
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Collector Of Central Excise, Baroda Vs. Ambalal Sarabhai Enterprises | it would be unlikely to be marketable as it was highly unstable. There was evidence as noted by the Tribunal that it has not been marketed by anyone. There is also an admission of the Superintendent of the appellant that no enquiry whatsoever was conducted by the department as to whether starch hydrolysate was ever marketed by anybody. It was pointed out by the revenue that even according to the respondent, it stored starch hydrolysate in tanks before transporting it through pipes but according to the appellant, the storage of starch hydrolysate was only for a period of a few hours only as a step in the process of transfer thereof to sorbitol. It, therefore, appears to us that there was substantial evidence that having regard to the nature of the goods that this was unlikely that the goods in question were marketable. This should be judged in the background of the evidence that the goods have not been marketed in a pragmatic manner. All this again would have to be judged in the light of the fact that revenue has to adduced any evidence whatsoever though asked to do so. It was pointed out that if the department was to charge duty of excise on this starch hydrolysate as one form of glucose it would be the burden on the Department to establish that starch hydrolysate was not merely marketable but was being marketed as glucose in some form. This would be so since what is liable for duty under Item 1-E is glucose in any form and, therefore, in order to demand duty under that item, the department must establish that the product on which duty was demanded was known in the market as glucose in one form or the other. There is no such evidence as observed by the Tribunal. The Tribunal noted and, in our opinion rightly, that revenue cannot be said to have discharged its burden of establishing that by applying the process of hydrolysis to starch for production of starch hydrolysate the respondent manufactures any excisable goods in the sense of being goods known in the market and being marketed or marketable. Our attention was drawn to the affidavit of Shri P. D. Khandor, Chemist, who was a Food Technologist and was holding a degree of B. Sc. (Chemistry). He was carrying on business of dealing in glucose. He stated in his affidavit as follows" "14. I have seen the starch hydrolysate made by Sarabhai M. Chemicals. It is completely hydrolysate starch. It appears as aqueous syrup containing about 66-71% reducing sugars expressed as dextrose. It is neither glucose or dextrose in any form nor glucose in liquid state nor liquid glucose. In order to find our the market for completely hydrolysed starch as is made in Sarachai M. Chemicals, at their instance, I had made trade inquiries. However, there is no market for such substance, since it can act only as an intermediate product for the manufacture of sorbitald. Dextrose or glucose and fructose and every manufacturer of glucose, dextrose, sorbitol and fructose would have his own plant for hydrolysing starch, it is commercially not a viable proposition for the manufacturers of glucose, dextrose, sorbitol or fructose or the persons undertaking the process of hydrolysing starch either to purchase completely hydrolysed starch from the market or sell or undertake process of hydrolysing starch for the purpose of sale in the market, because at lower concentration, starch which is completely hydrolysed would start fermenting and decomposing. At higher concentration, it would start crystallising out within two or three days." 6. This affidavit evidence remains uncontradicted. Shri Ganguly, however, drew our attention to an order of the Tribunal in M/s. Anil Starch Products Ltd., Ahmedabad v. The Collector of Central Excise, Ahmedabad (Appeal No. ED (SB) (T) 1534/81-D arising out of the Revision Order No. 820/81) He referred to the observations at page 117 of the paper book which dealt with the evidence of one Shri Khabholja, where, according to Shri Ganguly, the Tribunal came to a different conclusion. But the Tribunal in that case relied on the decision of the Allahabad High Court in the case of Union of India v. Union Carbide India Ltd. ((1978) 2 ELT 1 (All)) There the Allahabad High Court held that things would be nevertheless goods even if they did not have a general market, where they can be easy bought and sold. The High Court held that the fact that products might not be known to the general public or to the traders in general would not change the position and therefore the test did not appear to be sound. This decision of the Allahabad High Court which was relied upon by the Tribunal was set aside by this Court in Appeal in the case of Union Carbide India Ltd. v. Union of India ((1989) 1 SCC 1 SCC 602). In view of the test laid down and in view of the evidence discussed, it is difficult to sustain the order of the Tribunal. In this connection, it appears that there was no market enquiry by the Revenue. Reference may be made to the cross-examination of Shri Shukla, Superintendent (Central Excise) by Shri Nanawati as appears at pp. 235-237 of the present paper book. In view of further fact that there was positive evidence that starch hydrolysate was never marketed and in view of further fact that in the light do the nature of the goods being highly unstable, it is highly improbable that the goods were capable to being marketed and there being in spite of the opportunities, no evidence produced at all that the goods, in fact, were capable of being marketable, in our opinion, it must be held as did the Tribunal that the starch hydrolysate were not dutiable under the Act7. In the premises, the revenue has failed to discharge its onus to prove that starch hydrolysate was dutiable. In the premises, the Tribunal cannot be said to have committed any error. 7. | 0[ds]3. We are concerned in this appeal with starch hydrolysate and, therefore, if the process or activity of the assessee brings into existence an article different and distinct from it was before the process and a new identifiable article known in the market as such comes into being, then the use of such starch hydrolysate captively would attract duty on the part of the assessee even in captive consumption. It is not in dispute as the Tribunal noted in the instant case that starch is hydrolysed by the respondent. The operation of hydrolysis, it is contended, results in bringing into being st arch hydrolysate which is utilised in the manufacture of sorbitol. The question is whether starch hydrolysate is "good". The case of the respondent was that respondent was that the starch hydrolysate being wholly unstable and quickly fragmented and losing its character in a couple of days, the same could, therefore, neither be stored not marketed. In the premises, it was the case of the respondent that starch hydrolysate was not marketable product and would not, therefore, be "goods" on the manufacture of which excise duty could have been demanded or would have been payable and, therefore, for non-payment of duty, there has been no negligence or failure on the part of the respondent and as such Section 11-A of the Act was not applicable. In this connection, it would be instructive to refer and it would be necessary to rely on the principles laid down by this Court in South Bihar Sugar Mills Ltd., etc. v. Union of India ((1968) 3 SCR 21 : AIR 1968 SC 922 ). There, the appellant companies manufactured sugar by carbonation process and paid excise duty on sugar manufactured by them under Item 1 to the Act. According to one affidavit filed on behalf of the respondents, filed in those proceedings, these manufacturers employed a process of burning limestone with coke in a lime kiln with a regulated amount of air whereby a mixture of gases was generated consisting of carbon dioxide, nitrogen, oxygen and a small quantity of carbon monoxide. The gas thus produced was thereafter compressed so as to achieve pressure exceeding atmospheric pressure and then passed through a tank containing sugarcane juice so as to remove impurities from it and to refined the juice. For that process of refining it was only the carbon dioxide in the gas which was used and the other gases, i. e., nitrogen, oxygen and carbon monoxide escaped into the atmosphere by a vent provided for the purpose. The carbon dioxide content in this mixture of gases ranged from 27 to 36.5 % Similarly, another company manufactured soda ash by solvay ammonia soda process for which also carbon dioxide was required and this was produced by the petitioner therein by burning limestone with coke in a kiln in the same manner as the appellant sugar manufacturing companies employing the carbonation process. The respondents therein regarded all the companies as manufacturers of compressed carbon dioxide and levied excise duty on them under Item 14-H in Schedule I to the Act. Writ petitions were filed in the High Court challenging the validity of the excise duty but the same petitions were dismissed. It was contended, inter alia, on behalf of the appellants therein that the lime kiln was maintained to generate a mixture of gases and not carbon dioxide and at no stage in the process of generating this mixture and passing it through the sugarcane juice was carbon dioxide-which formed one of the contents of the mixture-either compressed, liquefied or solidified. The mixture of gases so generated was not carbon dioxide as known to the market nor was it according to the specifications laid down by the Indian Standards Institution which required the carbon dioxide content to be at least 99%. It was, therefore, contended that the excise duty sought to be recovered on the content of carbon dioxide in the mixture of gases could not fall under Item 14-H. It was further contended that the duty being on goods it could be charged only on goods known as carbon dioxide in the trade and marketable as such. As is evident from the said narration of facts the contentions urged were more or less similar to the contentions involved in the instant appeal before us. It was held by this Court that the gas generated by the appellant companies was kiln gas and not carbon dioxide as known to the trade, i.e., to those who dealt in it or who used it. The kiln gas in question, therefore, was neither carbon dioxide nor compressed carbon dioxide known as such to the commercial community and therefore, could not attract Item 14-H in the First Schedule. This Court reiterated at p. 31 of the report that the Act in question charges duty on manufacture of goods. The word "manufacture" implies a change but every change in the raw material is not manufacture. There must be such a transformation that a new and different article must emerge having a distinct name, character or use, The duty is levied on goods. As the Act does not define goods, the legislature must be taken to have used that word in its ordinary, dictionary meaning. The dictionary meaning of the expression it that to become goods it must be something which can ordinarily come to the market to be bought and sold and is known to the market. It would be such an article which would attract duty under the Act. This Court referred to the previous decision in the case of Union of India v. Delhi Cloth and General Mills Ltd. (1963 Supp 1 SCR 586 : AIR 1963 SC 791 ) Therefore, in this instant appeal, in order to determine whether starch hydrolysate was "goods" or not, it is necessary to determine whether there was any application of process to the raw materials and as a result of that application there emerged new and different article having a distinctive name, character or use and the resultant product being goods in the sense of being marketable or marketed. In this connection, Shri, Soli Sorabjee referred us to the observations of this Court in Union Carbide India Ltd. v. Union of India ((1986) 2 SCC 547 : 1986 SCC (Tax) 443 : (1986) 24 ELT 169 ) There, this Court reiterated that in order to attract excise duty, the article manufactured must be capable for being sold to a consumer. Entry 84 of List of Schedule VII to the Constitution specifically speaks of "duty of excise on tobacco or other goods manufactured or produced in India" and it is now well accepted that excise duty is an indirect tax, in which the burden of the imposition is passed on to the ultimate consumer. This Court held that in that context, the expression "goods manufactured or produced" must refer to articles which are capable of being sold to a consumer. To become "goods" an article must be something which can ordinarily come to the market to be bought and sold. The court found in that case that aluminum cans prepared by the appellants therein were employed entirely by it in the manufacture of flashlights and were not sold as aluminium cans in the market. It also appeared from the records that aluminium cans at the joint of levy of excise duty existed in a crude and elementary form which were incapable of being employed as a component in a flashlight. These cans had sharp uneven edges and in order to use them as a component in making flashlight cans, these cans had to undergo various processes such as trimming, threading and redrawing. After that these were reeded, beaded and anodized or painted, it was at that point only that these became distinct and component capable of being used as flashlight cans for housing battery cells and having bulb fitted to the can. This Court noted that it was difficult to believe that the elementary and unfurnished from in which these existed immediately after extrusion sufficed to attract a market. The assertion of the appellant on affidavit that aluminium cans were unknown in that form in the market had not been proved to the contrary by any satisfactory material by the respondents therein. The Court further found that not a single instance had been provided by the respondents demonstrating that such aluminium cans had a market. The conduct of the appellants in the past, having regards to the circumstance of the case, would not serve as evidence of the marketability of the aluminium cans, it was in that case. This Court noted that record disclosed that whatever aluminium cans were produced by the appellants were subsequently developed by it into a completed and perfected component for being employed as flashlight cans. In those circumstances, the aluminium cans produced by the appellants were not liable to excise duty under Section 3 of the Act read with Item 27 of the Central ExciseIn the case of Bhor Industries Ltd., Bombay v. Collector of Central Excise, Bombay ((1998) 1 SCC 602) this Court had to deal with the liability to duty on intermediate products and it was reiterated that liability to excise duty arises only when there is manufacture of goods which is marketable or capable of being marketed. It was held that excise is a duty on goods as specified on the Schedule. The taxable event in the case of excise duties is the manufacture of goods. Under the Act, in order to be goods as specified in the entry, it was essential that as a result of manufacture goods must come into existence. For articles to be goods, these must be known in the market as such or these must be capable of being sold in the market as goods. Actual sale is not necessary. User in the captive consumption is not determinative but the articles must be capable of being sold in the market or known in the market as goods. It is therefore, necessary to find out whether these are goods, that is to say, articles as known in the market as separate distinct identifiable commodities and whether the tariff duty levied would be as specified in the Schedule. Marketability, therefore, is an essential ingredient in order to be dutiable under the Schedule to Central Excise Tariff Act, 1985. In that case, the Court found that crude PVC films as produced by the appellant were not known in the market and could not be sold in the marked and was not capable of being marketable. The court further reiterated that it was the duty of the revenue of adduce evidence or proof that the articles in question were goods. The Tribunal went wrong, it was held, in to applying the test of marketability. There being no contrary evidence found by the Tribunal in that case, it was held that in those circumstances, no excise duty should beIt is in this light, therefore, that the evidence discussed by the Tribunal in this case, has to be viewed in order to test the validity of the order impugned. The case of the respondent had always been that starch hydrolysate was not being marketed and is not capable of being marketed in view of its highly unstable character resulting in fermentation even if kept for a day or two. Shri Ganguly appearing for the revenue sought to urge that the Tribunal was wrong in approaching the problem in that light. The test was not whether the starch hydrolysate was not of a highly unstable character and resulted in fermentation even in a day or two, but whether it was capable of being marketable. He submitted that the test applied was not the true test. He urged that even transient items of articles can be goods, provided that these were known in the market as distinct and separate articles having distinctive and separate uses, these would still become goods if these were capable of being marketable. He submitted that the test applied was not the true test. He urged that even transient items of articles can be goods, provided that these were known in the market as distinct and separate articles having distinctive and separate uses, these would still become goods if these were capable of being marketed even during short period. From a conceptual and jurisprudential point of view, Shri Ganguly is right. But we are concerned with the question whether actual goods in question were marketed, or, in other words, if not, whether these are marketable or not. It is true that the goods with unstable character can be theoretically marketable if there was a market of cash transient type of articles which are goods. But one has to take a practical approach. The assessee produced evidence in the form affidavit. One Shri Khandor, who filed an affidavit in support of the case of the respondent, had stated in the affidavit that completely hydrolysed starch would start fermenting and decomposing and at higher concentration it would start crystallizing out within two or three days. This is evidence indicating propensity of its not being marketed. It is good evidence to come to this conclusion that it would be unlikely to be marketable as it was highly unstable. There was evidence as noted by the Tribunal that it has not been marketed by anyone. There is also an admission of the Superintendent of the appellant that no enquiry whatsoever was conducted by the department as to whether starch hydrolysate was ever marketed by anybody. It was pointed out by the revenue that even according to the respondent, it stored starch hydrolysate in tanks before transporting it through pipes but according to the appellant, the storage of starch hydrolysate was only for a period of a few hours only as a step in the process of transfer thereof to sorbitol. It, therefore, appears to us that there was substantial evidence that having regard to the nature of the goods that this was unlikely that the goods in question were marketable. This should be judged in the background of the evidence that the goods have not been marketed in a pragmatic manner. All this again would have to be judged in the light of the fact that revenue has to adduced any evidence whatsoever though asked to do so. It was pointed out that if the department was to charge duty of excise on this starch hydrolysate as one form of glucose it would be the burden on the Department to establish that starch hydrolysate was not merely marketable but was being marketed as glucose in some form. This would be so since what is liable for duty under Item 1-E is glucose in any form and, therefore, in order to demand duty under that item, the department must establish that the product on which duty was demanded was known in the market as glucose in one form or the other. There is no such evidence as observed by the Tribunal. The Tribunal noted and, in our opinion rightly, that revenue cannot be said to have discharged its burden of establishing that by applying the process of hydrolysis to starch for production of starch hydrolysate the respondent manufactures any excisable goods in the sense of being goods known in the market and being marketed or marketable. Our attention was drawn to the affidavit of Shri P. D. Khandor, Chemist, who was a Food Technologist and was holding a degree of B. Sc. (Chemistry). He was carrying on business of dealing in glucose. He stated in his affidavit asI have seen the starch hydrolysate made by Sarabhai M. Chemicals. It is completely hydrolysate starch. It appears as aqueous syrup containing about 66-71% reducing sugars expressed as dextrose. It is neither glucose or dextrose in any form nor glucose in liquid state nor liquid glucose. In order to find our the market for completely hydrolysed starch as is made in Sarachai M. Chemicals, at their instance, I had made trade inquiries. However, there is no market for such substance, since it can act only as an intermediate product for the manufacture of sorbitald. Dextrose or glucose and fructose and every manufacturer of glucose, dextrose, sorbitol and fructose would have his own plant for hydrolysing starch, it is commercially not a viable proposition for the manufacturers of glucose, dextrose, sorbitol or fructose or the persons undertaking the process of hydrolysing starch either to purchase completely hydrolysed starch from the market or sell or undertake process of hydrolysing starch for the purpose of sale in the market, because at lower concentration, starch which is completely hydrolysed would start fermenting and decomposing. At higher concentration, it would start crystallising out within two or three days.This affidavit evidence remains uncontradicted. Shri Ganguly, however, drew our attention to an order of the Tribunal in M/s. Anil Starch Products Ltd., Ahmedabad v. The Collector of Central Excise, Ahmedabad (Appeal No. ED (SB) (T) 1534/81-D arising out of the Revision Order No. 820/81) He referred to the observations at page 117 of the paper book which dealt with the evidence of one Shri Khabholja, where, according to Shri Ganguly, the Tribunal came to a different conclusion. But the Tribunal in that case relied on the decision of the Allahabad High Court in the case of Union of India v. Union Carbide India Ltd. ((1978) 2 ELT 1 (All)) There the Allahabad High Court held that things would be nevertheless goods even if they did not have a general market, where they can be easy bought and sold. The High Court held that the fact that products might not be known to the general public or to the traders in general would not change the position and therefore the test did not appear to be sound. This decision of the Allahabad High Court which was relied upon by the Tribunal was set aside by this Court in Appeal in the case of Union Carbide India Ltd. v. Union of India ((1989) 1 SCC 1 SCC 602). In view of the test laid down and in view of the evidence discussed, it is difficult to sustain the order of the Tribunal. In this connection, it appears that there was no market enquiry by the Revenue. Reference may be made to the cross-examination of Shri Shukla, Superintendent (Central Excise) by Shri Nanawati as appears at pp. 235-237 of the present paper book. In view of further fact that there was positive evidence that starch hydrolysate was never marketed and in view of further fact that in the light do the nature of the goods being highly unstable, it is highly improbable that the goods were capable to being marketed and there being in spite of the opportunities, no evidence produced at all that the goods, in fact, were capable of being marketable, in our opinion, it must be held as did the Tribunal that the starch hydrolysate were not dutiable under the Act7. In the premises, the revenue has failed to discharge its onus to prove that starch hydrolysate was dutiable. In the premises, the Tribunal cannot be said to have committed any error. | 0 | 4,511 | 3,487 | ### Instruction:
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it would be unlikely to be marketable as it was highly unstable. There was evidence as noted by the Tribunal that it has not been marketed by anyone. There is also an admission of the Superintendent of the appellant that no enquiry whatsoever was conducted by the department as to whether starch hydrolysate was ever marketed by anybody. It was pointed out by the revenue that even according to the respondent, it stored starch hydrolysate in tanks before transporting it through pipes but according to the appellant, the storage of starch hydrolysate was only for a period of a few hours only as a step in the process of transfer thereof to sorbitol. It, therefore, appears to us that there was substantial evidence that having regard to the nature of the goods that this was unlikely that the goods in question were marketable. This should be judged in the background of the evidence that the goods have not been marketed in a pragmatic manner. All this again would have to be judged in the light of the fact that revenue has to adduced any evidence whatsoever though asked to do so. It was pointed out that if the department was to charge duty of excise on this starch hydrolysate as one form of glucose it would be the burden on the Department to establish that starch hydrolysate was not merely marketable but was being marketed as glucose in some form. This would be so since what is liable for duty under Item 1-E is glucose in any form and, therefore, in order to demand duty under that item, the department must establish that the product on which duty was demanded was known in the market as glucose in one form or the other. There is no such evidence as observed by the Tribunal. The Tribunal noted and, in our opinion rightly, that revenue cannot be said to have discharged its burden of establishing that by applying the process of hydrolysis to starch for production of starch hydrolysate the respondent manufactures any excisable goods in the sense of being goods known in the market and being marketed or marketable. Our attention was drawn to the affidavit of Shri P. D. Khandor, Chemist, who was a Food Technologist and was holding a degree of B. Sc. (Chemistry). He was carrying on business of dealing in glucose. He stated in his affidavit as follows" "14. I have seen the starch hydrolysate made by Sarabhai M. Chemicals. It is completely hydrolysate starch. It appears as aqueous syrup containing about 66-71% reducing sugars expressed as dextrose. It is neither glucose or dextrose in any form nor glucose in liquid state nor liquid glucose. In order to find our the market for completely hydrolysed starch as is made in Sarachai M. Chemicals, at their instance, I had made trade inquiries. However, there is no market for such substance, since it can act only as an intermediate product for the manufacture of sorbitald. Dextrose or glucose and fructose and every manufacturer of glucose, dextrose, sorbitol and fructose would have his own plant for hydrolysing starch, it is commercially not a viable proposition for the manufacturers of glucose, dextrose, sorbitol or fructose or the persons undertaking the process of hydrolysing starch either to purchase completely hydrolysed starch from the market or sell or undertake process of hydrolysing starch for the purpose of sale in the market, because at lower concentration, starch which is completely hydrolysed would start fermenting and decomposing. At higher concentration, it would start crystallising out within two or three days." 6. This affidavit evidence remains uncontradicted. Shri Ganguly, however, drew our attention to an order of the Tribunal in M/s. Anil Starch Products Ltd., Ahmedabad v. The Collector of Central Excise, Ahmedabad (Appeal No. ED (SB) (T) 1534/81-D arising out of the Revision Order No. 820/81) He referred to the observations at page 117 of the paper book which dealt with the evidence of one Shri Khabholja, where, according to Shri Ganguly, the Tribunal came to a different conclusion. But the Tribunal in that case relied on the decision of the Allahabad High Court in the case of Union of India v. Union Carbide India Ltd. ((1978) 2 ELT 1 (All)) There the Allahabad High Court held that things would be nevertheless goods even if they did not have a general market, where they can be easy bought and sold. The High Court held that the fact that products might not be known to the general public or to the traders in general would not change the position and therefore the test did not appear to be sound. This decision of the Allahabad High Court which was relied upon by the Tribunal was set aside by this Court in Appeal in the case of Union Carbide India Ltd. v. Union of India ((1989) 1 SCC 1 SCC 602). In view of the test laid down and in view of the evidence discussed, it is difficult to sustain the order of the Tribunal. In this connection, it appears that there was no market enquiry by the Revenue. Reference may be made to the cross-examination of Shri Shukla, Superintendent (Central Excise) by Shri Nanawati as appears at pp. 235-237 of the present paper book. In view of further fact that there was positive evidence that starch hydrolysate was never marketed and in view of further fact that in the light do the nature of the goods being highly unstable, it is highly improbable that the goods were capable to being marketed and there being in spite of the opportunities, no evidence produced at all that the goods, in fact, were capable of being marketable, in our opinion, it must be held as did the Tribunal that the starch hydrolysate were not dutiable under the Act7. In the premises, the revenue has failed to discharge its onus to prove that starch hydrolysate was dutiable. In the premises, the Tribunal cannot be said to have committed any error. 7.
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to come to this conclusion that it would be unlikely to be marketable as it was highly unstable. There was evidence as noted by the Tribunal that it has not been marketed by anyone. There is also an admission of the Superintendent of the appellant that no enquiry whatsoever was conducted by the department as to whether starch hydrolysate was ever marketed by anybody. It was pointed out by the revenue that even according to the respondent, it stored starch hydrolysate in tanks before transporting it through pipes but according to the appellant, the storage of starch hydrolysate was only for a period of a few hours only as a step in the process of transfer thereof to sorbitol. It, therefore, appears to us that there was substantial evidence that having regard to the nature of the goods that this was unlikely that the goods in question were marketable. This should be judged in the background of the evidence that the goods have not been marketed in a pragmatic manner. All this again would have to be judged in the light of the fact that revenue has to adduced any evidence whatsoever though asked to do so. It was pointed out that if the department was to charge duty of excise on this starch hydrolysate as one form of glucose it would be the burden on the Department to establish that starch hydrolysate was not merely marketable but was being marketed as glucose in some form. This would be so since what is liable for duty under Item 1-E is glucose in any form and, therefore, in order to demand duty under that item, the department must establish that the product on which duty was demanded was known in the market as glucose in one form or the other. There is no such evidence as observed by the Tribunal. The Tribunal noted and, in our opinion rightly, that revenue cannot be said to have discharged its burden of establishing that by applying the process of hydrolysis to starch for production of starch hydrolysate the respondent manufactures any excisable goods in the sense of being goods known in the market and being marketed or marketable. Our attention was drawn to the affidavit of Shri P. D. Khandor, Chemist, who was a Food Technologist and was holding a degree of B. Sc. (Chemistry). He was carrying on business of dealing in glucose. He stated in his affidavit asI have seen the starch hydrolysate made by Sarabhai M. Chemicals. It is completely hydrolysate starch. It appears as aqueous syrup containing about 66-71% reducing sugars expressed as dextrose. It is neither glucose or dextrose in any form nor glucose in liquid state nor liquid glucose. In order to find our the market for completely hydrolysed starch as is made in Sarachai M. Chemicals, at their instance, I had made trade inquiries. However, there is no market for such substance, since it can act only as an intermediate product for the manufacture of sorbitald. Dextrose or glucose and fructose and every manufacturer of glucose, dextrose, sorbitol and fructose would have his own plant for hydrolysing starch, it is commercially not a viable proposition for the manufacturers of glucose, dextrose, sorbitol or fructose or the persons undertaking the process of hydrolysing starch either to purchase completely hydrolysed starch from the market or sell or undertake process of hydrolysing starch for the purpose of sale in the market, because at lower concentration, starch which is completely hydrolysed would start fermenting and decomposing. At higher concentration, it would start crystallising out within two or three days.This affidavit evidence remains uncontradicted. Shri Ganguly, however, drew our attention to an order of the Tribunal in M/s. Anil Starch Products Ltd., Ahmedabad v. The Collector of Central Excise, Ahmedabad (Appeal No. ED (SB) (T) 1534/81-D arising out of the Revision Order No. 820/81) He referred to the observations at page 117 of the paper book which dealt with the evidence of one Shri Khabholja, where, according to Shri Ganguly, the Tribunal came to a different conclusion. But the Tribunal in that case relied on the decision of the Allahabad High Court in the case of Union of India v. Union Carbide India Ltd. ((1978) 2 ELT 1 (All)) There the Allahabad High Court held that things would be nevertheless goods even if they did not have a general market, where they can be easy bought and sold. The High Court held that the fact that products might not be known to the general public or to the traders in general would not change the position and therefore the test did not appear to be sound. This decision of the Allahabad High Court which was relied upon by the Tribunal was set aside by this Court in Appeal in the case of Union Carbide India Ltd. v. Union of India ((1989) 1 SCC 1 SCC 602). In view of the test laid down and in view of the evidence discussed, it is difficult to sustain the order of the Tribunal. In this connection, it appears that there was no market enquiry by the Revenue. Reference may be made to the cross-examination of Shri Shukla, Superintendent (Central Excise) by Shri Nanawati as appears at pp. 235-237 of the present paper book. In view of further fact that there was positive evidence that starch hydrolysate was never marketed and in view of further fact that in the light do the nature of the goods being highly unstable, it is highly improbable that the goods were capable to being marketed and there being in spite of the opportunities, no evidence produced at all that the goods, in fact, were capable of being marketable, in our opinion, it must be held as did the Tribunal that the starch hydrolysate were not dutiable under the Act7. In the premises, the revenue has failed to discharge its onus to prove that starch hydrolysate was dutiable. In the premises, the Tribunal cannot be said to have committed any error.
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NEW DELHI MUNICIPAL COUNCIL Vs. MINOSHA INDIA LIMITED | When the resolution plan is approved, a new management takes over. All this is contemplated when the CIRP is successful. Undoubtedly, if it is unsuccessful, the corporate debtor slips into liquidation. Therefore, on the one hand, an application under Section 7, 9 or 10, does bring in a period which is intended to bring a corporate debtor back to life if possible, a period of calm, in the words of the respondent. But this is a period during which the management of the corporate debtor is displaced, ironically, a period of turbulent churning. While it may be true that proceedings by the corporate debtor through the resolution professional is contemplated, it is not impossible to contemplate that the resolution professional for whatever reason it may be, does not discharge his duties and conduct proceedings in all matters as he should. We are noting this as this can be the rationale for the Law Giver excluding the period of limitation in regard to suits or applications at the instance of the corporate debtor under Section 60(6). 25. As far as understanding the meaning of Section 60(6) is concerned, there cannot be a slightest doubt that the period of Moratorium is excluded even in the case of a suit or application brought by a corporate debtor, viz., in regard to the period of the moratorium. It is true that on the one hand what is tabooed in Section 14 when a Moratorium is put into place is inter alia the institution of suits or continuance of pending suits or proceedings against the corporate debtor including proceeding in execution of inter alia, the decree or order of an arbitration panel. So, also the provision prohibits any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002. Still further, the recovery of any property by an owner or lessor in the occupation of the corporate debtor is forbidden. These provisions do not in any manner appear to stand in the way of the corporate debtor instituting or proceeding with a suit or a proceeding against others. Section 60(6) on the other hand excludes the period during which the Moratorium under Section 14 is in place in computing the period of limitation. An ambiguity is introduced, namely the need to exclude the period of limitation for a suit or an application, at the instance of the corporate debtor when a Moratorium ushered in by an order under Section 14 does not pose any bar against a suit or an application at the instance of the corporate debtor. The words for which an order of Moratorium has been made under this part is intended to be the point of reference or the premise for the exclusion of the time for the purpose of computing the period of limitation. Besides being the point of reference and being the sine qua non for applying Section 60(6), it also specifies the period of time which will be excluded in computing of the period of limitation. In other words, present an order of Moratorium under Section 14, the entire period of the Moratorium is liable to be excluded in computing the period of limitation even in a suit or an application by a corporate debtor. 26. The contention of the learned Senior Counsel for the appellant based on the approval of the resolution plan and the effect of Section 31 apparently of the IBC does not appeal to us. What Section 31 of the Act, IBC undoubtedly proclaims is that on approval of the resolution plan by the adjudicating authority the plan becomes binding on a corporate debtor, its employees, members, creditors, the Central Government any State Government or any local authority as provided therein, guarantors and others stakeholders involved in the resolution plan. We are unable to perceive how the appellant can derive support from the said provision. In fact, taking the scheme of the IBC Section 60(6) would become an integral part of the scheme which will enure to the benefit of the resolution applicant which is enabled to take suitable measures to ventilate its legitimate grievances by excluding the period during which a Moratorium was enforced for the purpose of computing the period of limitation. 27. In other words, notwithstanding the period of limitation under the Limitation Act, the Law Giver has thought it fit to provide that in respect of a corporate debtor if there has been an order of moratorium made in Part II, the period during which such moratorium was in place shall be excluded. For which an order of moratorium cannot bear the interpretation which is sought to be placed by the appellant. The interpretation placed by the appellant is clearly against the plain meaning of the words which have been used. We have already undertaken the task of understanding the purport of the Code and the context in which section 60(6) has been put in place. This Court cannot possibly sit in judgment over the wisdom of the Law Giver. The period of limitation is provided under the Limitation Act. The law giver has contemplated that when a moratorium has been put in place, the said period must be excluded. We cannot overlook also the employment of words any suit or application. This is apart, no doubt, from the words by a corporate debtor. Interpreting the statute in the manner which the appellant seeks would result in our denying the benefit of extending the period of limitation to the corporate debtor, a result, which we think, would not be warranted by the clear words used in the statute. 28. Therefore, we are of the view that section 60(6) of the IBC does contemplate exclusion of the entire period during which the moratorium was in force in respect of corporate debtor in regard to a proceeding as contemplated therein at the hands of the corporate debtor. | 0[ds]In (1976) 3 All England Law Reports 611, Lord Simon of Glaisdale, in the case of Suthendran v. Immigration Appeal Tribunal has given an exposition of the golden rule of interpretation, which is the same as understanding the words of a Statute in their natural and ordinary sense, with reference to the grammatical meaning and the same has been adverted and approved by this Court in Harbhajan Singh v. Press Council of India and others (2002) 3 SCC 722 :Parliament is prima facie to be credited with meaning what is said in an Act of Parliament. The drafting of statutes, so important to people who hope to live under the rule of law, will never be satisfactory unless courts seek whenever possible to apply the golden rule of construction, that is to read the statutory language, grammatically and terminologically, in the ordinary and primary sense which it bears in its context, without omission or addition. Of course, Parliament is to be credited with good sense; so that when such an approach produces injustice, absurdity, contradiction or stultification of statutory objective the language may be modified sufficiently to avoid such disadvantage, though no further.21. No doubt, another principle, which has rightfully vied for the Courts approval in this regard, is that, an interpretation which furthers the object and purpose of the law, must weigh with the Court, the most. In this regard, we may notice the following view expressed by Justice S. B. Sinha in New India Assurance Co. Ltd. v. Nusli Neville Wadia and another (2008) 3 SCC 279 :51. … With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absurdity which must be avoided. So as to enable a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator/author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled, which in turn would lead the beneficiary under the statutory scheme to fulfil its constitutional obligations as held by the Court inter alia in Ashoka Marketing Ltd. [(1990) 4 SCC 406] 52. Barak in his exhaustive work on Purposive Construction explains various meanings attributed to the term purpose. It would be in the fitness of discussion to refer to Purposive Construction in Baraks words:Hart and Sachs also appear to treat purpose as a subjective concept. I say appear because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislators shoes, they introduce two elements of objectivity : First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfil their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably.(Aharon Barak, Purposive Interpretation in Law, (2007) at p. 87.)24. Under the IBC, by virtue of the order admitting the application, be it under Sections 7, 9 or 10, and imposing moratorium, proceedings as are contemplated in Section 14 would be tabooed. This undoubtedly does not include an application under Section 11(6) of the 1996 Act by the corporate debtor or for that matter, any other proceeding by the corporate debtor against another party. At least there is no express exclusion of the jurisdiction of the Court or authorities to entertain any such proceeding at the hands of the corporate debtor. However, we must not be oblivious to the other provisions as well. Under Section 17, the management of the affairs of the corporate debtor is taken over by the interim resolution professional. The powers of the Board of Directors or the partners of the corporate debtor shall stand suspended and it would be exercised by the interim resolution professional. When the authority changes hands from the interim resolution professional to the resolution professional, the previous management continues to be excluded. The committee of creditors comes into being. Under the supervision, as it were, of the committee of creditors, all the matters are proceeded with. The resolution plans are received by the resolution professional and the resolution plan which is finally approved by the committee of creditors and still further at the hands of the adjudicating authority, would result in the curtains being wrung down on the moratorium under Section 31(3). During this entire period, what is noteworthy is that while in law and in form, the corporate debtor continues to exist and represented by the interim resolution professional to begin with and the resolution professional thereafter, the erstwhile management of the corporate debtor is displaced. When the resolution plan is approved, a new management takes over. All this is contemplated when the CIRP is successful. Undoubtedly, if it is unsuccessful, the corporate debtor slips into liquidation. Therefore, on the one hand, an application under Section 7, 9 or 10, does bring in a period which is intended to bring a corporate debtor back to life if possible, a period of calm, in the words of the respondent. But this is a period during which the management of the corporate debtor is displaced, ironically, a period of turbulent churning. While it may be true that proceedings by the corporate debtor through the resolution professional is contemplated, it is not impossible to contemplate that the resolution professional for whatever reason it may be, does not discharge his duties and conduct proceedings in all matters as he should. We are noting this as this can be the rationale for the Law Giver excluding the period of limitation in regard to suits or applications at the instance of the corporate debtor under Section 60(6).25. As far as understanding the meaning of Section 60(6) is concerned, there cannot be a slightest doubt that the period of Moratorium is excluded even in the case of a suit or application brought by a corporate debtor, viz., in regard to the period of the moratorium. It is true that on the one hand what is tabooed in Section 14 when a Moratorium is put into place is inter alia the institution of suits or continuance of pending suits or proceedings against the corporate debtor including proceeding in execution of inter alia, the decree or order of an arbitration panel. So, also the provision prohibits any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002. Still further, the recovery of any property by an owner or lessor in the occupation of the corporate debtor is forbidden. These provisions do not in any manner appear to stand in the way of the corporate debtor instituting or proceeding with a suit or a proceeding against others. Section 60(6) on the other hand excludes the period during which the Moratorium under Section 14 is in place in computing the period of limitation. An ambiguity is introduced, namely the need to exclude the period of limitation for a suit or an application, at the instance of the corporate debtor when a Moratorium ushered in by an order under Section 14 does not pose any bar against a suit or an application at the instance of the corporate debtor. The words for which an order of Moratorium has been made under this part is intended to be the point of reference or the premise for the exclusion of the time for the purpose of computing the period of limitation. Besides being the point of reference and being the sine qua non for applying Section 60(6), it also specifies the period of time which will be excluded in computing of the period of limitation. In other words, present an order of Moratorium under Section 14, the entire period of the Moratorium is liable to be excluded in computing the period of limitation even in a suit or an application by a corporate debtor.26. The contention of the learned Senior Counsel for the appellant based on the approval of the resolution plan and the effect of Section 31 apparently of the IBC does not appeal to us. What Section 31 of the Act, IBC undoubtedly proclaims is that on approval of the resolution plan by the adjudicating authority the plan becomes binding on a corporate debtor, its employees, members, creditors, the Central Government any State Government or any local authority as provided therein, guarantors and others stakeholders involved in the resolution plan. We are unable to perceive how the appellant can derive support from the said provision. In fact, taking the scheme of the IBC Section 60(6) would become an integral part of the scheme which will enure to the benefit of the resolution applicant which is enabled to take suitable measures to ventilate its legitimate grievances by excluding the period during which a Moratorium was enforced for the purpose of computing the period of limitation.27. In other words, notwithstanding the period of limitation under the Limitation Act, the Law Giver has thought it fit to provide that in respect of a corporate debtor if there has been an order of moratorium made in Part II, the period during which such moratorium was in place shall be excluded. For which an order of moratorium cannot bear the interpretation which is sought to be placed by the appellant. The interpretation placed by the appellant is clearly against the plain meaning of the words which have been used. We have already undertaken the task of understanding the purport of the Code and the context in which section 60(6) has been put in place. This Court cannot possibly sit in judgment over the wisdom of the Law Giver. The period of limitation is provided under the Limitation Act. The law giver has contemplated that when a moratorium has been put in place, the said period must be excluded. We cannot overlook also the employment of words any suit or application. This is apart, no doubt, from the words by a corporate debtor. Interpreting the statute in the manner which the appellant seeks would result in our denying the benefit of extending the period of limitation to the corporate debtor, a result, which we think, would not be warranted by the clear words used in the statute.28. Therefore, we are of the view that section 60(6) of the IBC does contemplate exclusion of the entire period during which the moratorium was in force in respect of corporate debtor in regard to a proceeding as contemplated therein at the hands of the corporate debtor. | 0 | 7,199 | 2,039 | ### 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:
When the resolution plan is approved, a new management takes over. All this is contemplated when the CIRP is successful. Undoubtedly, if it is unsuccessful, the corporate debtor slips into liquidation. Therefore, on the one hand, an application under Section 7, 9 or 10, does bring in a period which is intended to bring a corporate debtor back to life if possible, a period of calm, in the words of the respondent. But this is a period during which the management of the corporate debtor is displaced, ironically, a period of turbulent churning. While it may be true that proceedings by the corporate debtor through the resolution professional is contemplated, it is not impossible to contemplate that the resolution professional for whatever reason it may be, does not discharge his duties and conduct proceedings in all matters as he should. We are noting this as this can be the rationale for the Law Giver excluding the period of limitation in regard to suits or applications at the instance of the corporate debtor under Section 60(6). 25. As far as understanding the meaning of Section 60(6) is concerned, there cannot be a slightest doubt that the period of Moratorium is excluded even in the case of a suit or application brought by a corporate debtor, viz., in regard to the period of the moratorium. It is true that on the one hand what is tabooed in Section 14 when a Moratorium is put into place is inter alia the institution of suits or continuance of pending suits or proceedings against the corporate debtor including proceeding in execution of inter alia, the decree or order of an arbitration panel. So, also the provision prohibits any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002. Still further, the recovery of any property by an owner or lessor in the occupation of the corporate debtor is forbidden. These provisions do not in any manner appear to stand in the way of the corporate debtor instituting or proceeding with a suit or a proceeding against others. Section 60(6) on the other hand excludes the period during which the Moratorium under Section 14 is in place in computing the period of limitation. An ambiguity is introduced, namely the need to exclude the period of limitation for a suit or an application, at the instance of the corporate debtor when a Moratorium ushered in by an order under Section 14 does not pose any bar against a suit or an application at the instance of the corporate debtor. The words for which an order of Moratorium has been made under this part is intended to be the point of reference or the premise for the exclusion of the time for the purpose of computing the period of limitation. Besides being the point of reference and being the sine qua non for applying Section 60(6), it also specifies the period of time which will be excluded in computing of the period of limitation. In other words, present an order of Moratorium under Section 14, the entire period of the Moratorium is liable to be excluded in computing the period of limitation even in a suit or an application by a corporate debtor. 26. The contention of the learned Senior Counsel for the appellant based on the approval of the resolution plan and the effect of Section 31 apparently of the IBC does not appeal to us. What Section 31 of the Act, IBC undoubtedly proclaims is that on approval of the resolution plan by the adjudicating authority the plan becomes binding on a corporate debtor, its employees, members, creditors, the Central Government any State Government or any local authority as provided therein, guarantors and others stakeholders involved in the resolution plan. We are unable to perceive how the appellant can derive support from the said provision. In fact, taking the scheme of the IBC Section 60(6) would become an integral part of the scheme which will enure to the benefit of the resolution applicant which is enabled to take suitable measures to ventilate its legitimate grievances by excluding the period during which a Moratorium was enforced for the purpose of computing the period of limitation. 27. In other words, notwithstanding the period of limitation under the Limitation Act, the Law Giver has thought it fit to provide that in respect of a corporate debtor if there has been an order of moratorium made in Part II, the period during which such moratorium was in place shall be excluded. For which an order of moratorium cannot bear the interpretation which is sought to be placed by the appellant. The interpretation placed by the appellant is clearly against the plain meaning of the words which have been used. We have already undertaken the task of understanding the purport of the Code and the context in which section 60(6) has been put in place. This Court cannot possibly sit in judgment over the wisdom of the Law Giver. The period of limitation is provided under the Limitation Act. The law giver has contemplated that when a moratorium has been put in place, the said period must be excluded. We cannot overlook also the employment of words any suit or application. This is apart, no doubt, from the words by a corporate debtor. Interpreting the statute in the manner which the appellant seeks would result in our denying the benefit of extending the period of limitation to the corporate debtor, a result, which we think, would not be warranted by the clear words used in the statute. 28. Therefore, we are of the view that section 60(6) of the IBC does contemplate exclusion of the entire period during which the moratorium was in force in respect of corporate debtor in regard to a proceeding as contemplated therein at the hands of the corporate debtor.
### Response:
0
### Explanation:
corporate debtor is displaced. When the resolution plan is approved, a new management takes over. All this is contemplated when the CIRP is successful. Undoubtedly, if it is unsuccessful, the corporate debtor slips into liquidation. Therefore, on the one hand, an application under Section 7, 9 or 10, does bring in a period which is intended to bring a corporate debtor back to life if possible, a period of calm, in the words of the respondent. But this is a period during which the management of the corporate debtor is displaced, ironically, a period of turbulent churning. While it may be true that proceedings by the corporate debtor through the resolution professional is contemplated, it is not impossible to contemplate that the resolution professional for whatever reason it may be, does not discharge his duties and conduct proceedings in all matters as he should. We are noting this as this can be the rationale for the Law Giver excluding the period of limitation in regard to suits or applications at the instance of the corporate debtor under Section 60(6).25. As far as understanding the meaning of Section 60(6) is concerned, there cannot be a slightest doubt that the period of Moratorium is excluded even in the case of a suit or application brought by a corporate debtor, viz., in regard to the period of the moratorium. It is true that on the one hand what is tabooed in Section 14 when a Moratorium is put into place is inter alia the institution of suits or continuance of pending suits or proceedings against the corporate debtor including proceeding in execution of inter alia, the decree or order of an arbitration panel. So, also the provision prohibits any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002. Still further, the recovery of any property by an owner or lessor in the occupation of the corporate debtor is forbidden. These provisions do not in any manner appear to stand in the way of the corporate debtor instituting or proceeding with a suit or a proceeding against others. Section 60(6) on the other hand excludes the period during which the Moratorium under Section 14 is in place in computing the period of limitation. An ambiguity is introduced, namely the need to exclude the period of limitation for a suit or an application, at the instance of the corporate debtor when a Moratorium ushered in by an order under Section 14 does not pose any bar against a suit or an application at the instance of the corporate debtor. The words for which an order of Moratorium has been made under this part is intended to be the point of reference or the premise for the exclusion of the time for the purpose of computing the period of limitation. Besides being the point of reference and being the sine qua non for applying Section 60(6), it also specifies the period of time which will be excluded in computing of the period of limitation. In other words, present an order of Moratorium under Section 14, the entire period of the Moratorium is liable to be excluded in computing the period of limitation even in a suit or an application by a corporate debtor.26. The contention of the learned Senior Counsel for the appellant based on the approval of the resolution plan and the effect of Section 31 apparently of the IBC does not appeal to us. What Section 31 of the Act, IBC undoubtedly proclaims is that on approval of the resolution plan by the adjudicating authority the plan becomes binding on a corporate debtor, its employees, members, creditors, the Central Government any State Government or any local authority as provided therein, guarantors and others stakeholders involved in the resolution plan. We are unable to perceive how the appellant can derive support from the said provision. In fact, taking the scheme of the IBC Section 60(6) would become an integral part of the scheme which will enure to the benefit of the resolution applicant which is enabled to take suitable measures to ventilate its legitimate grievances by excluding the period during which a Moratorium was enforced for the purpose of computing the period of limitation.27. In other words, notwithstanding the period of limitation under the Limitation Act, the Law Giver has thought it fit to provide that in respect of a corporate debtor if there has been an order of moratorium made in Part II, the period during which such moratorium was in place shall be excluded. For which an order of moratorium cannot bear the interpretation which is sought to be placed by the appellant. The interpretation placed by the appellant is clearly against the plain meaning of the words which have been used. We have already undertaken the task of understanding the purport of the Code and the context in which section 60(6) has been put in place. This Court cannot possibly sit in judgment over the wisdom of the Law Giver. The period of limitation is provided under the Limitation Act. The law giver has contemplated that when a moratorium has been put in place, the said period must be excluded. We cannot overlook also the employment of words any suit or application. This is apart, no doubt, from the words by a corporate debtor. Interpreting the statute in the manner which the appellant seeks would result in our denying the benefit of extending the period of limitation to the corporate debtor, a result, which we think, would not be warranted by the clear words used in the statute.28. Therefore, we are of the view that section 60(6) of the IBC does contemplate exclusion of the entire period during which the moratorium was in force in respect of corporate debtor in regard to a proceeding as contemplated therein at the hands of the corporate debtor.
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P.R. Shah Shares & Stock Brokers (P)Ltd Vs. M/S. B.H.H. Securities (P) Ltd. | Anr. [2003 (5) SCC 531 ] wherein this Court held that where a suit is commenced in respect of a matter which falls partly within the arbitration agreement and partly outside and which involves the parties, some of whom are parties to the agreement while some are not, Section 8 of the Act was not attracted and the subject-matter of the suit could not be referred to arbitration, either wholly or by splitting up the causes of action and the parties. The decision in Sukanya Holdings will not apply as we are not concerned with a suit or a situation where there is no provision for arbitration in regard to some of the parties. 14. In this case, the first respondent had a claim for ` 36,98,354.73 jointly against second respondent and the appellant. According to the first respondent, it entered into the transaction with second respondent on the instructions of the appellant and on the understanding that the appellant will also be liable and in fact, the appellant accepting its liability, had also paid ` 13 lakhs as part-payment. It is not disputed that appellant and second respondent were closely held family companies managed by the same person (Ms. Kanan C. Sheth). According to appellant the share holdings in appellant was Kanan C. Seth : 105,000 shares, Chetan M. Sheth : 45000 shares and Jasumati P.Shah: 150,000 shares and the shareholdings in second respondent company was Kanan C.Sheth: 100 shares and Chetan M. Sheth: 100 shares. 15. If A had a claim against B and C, and there was an arbitration agreement between A and B but there was no arbitration agreement between A and C, it might not be possible to have a joint arbitration against B and C. A cannot make a claim against C in an arbitration against B, on the ground that the claim was being made jointly against B and C, as C was not a party to the arbitration agreement. But if A had a claim against B and C and if A had an arbitration agreement with B and A also had a separate arbitration agreement with C, there is no reason why A cannot have a joint arbitration against B & C. Obviously, having an arbitration between A and B and another arbitration between A and C in regard to the same claim would lead to conflicting decisions. In such a case, to deny the benefit of a single arbitration against B and C on the ground that the arbitration agreements against B and C are different, would lead to multiplicity of proceedings, conflicting decisions and cause injustice. It would be proper and just to say that when A has a claim jointly against B and C, and when there are provisions for arbitration in respect of both B and C, there can be a single arbitration. In this case though the arbitration in respect of a non-member is under Bye-law 248 and arbitration in respect of the member is under Bye Law 282, as the Exchange has permitted a single arbitration against both, there could be no impediment for a single arbitration It is this principle that has been applied by the learned Single Judge, and affirmed by the division bench. As first respondent had a single claim against second respondent and appellant and as there was provision for arbitration in regard to both of them, and as the Exchange had permitted a common arbitration, it is not possible to accept the contention of the appellant that there could not be a common arbitration against appellant and second respondent.Re : Contention (ii) 16. A court does not sit in appeal over the award of an arbitral tribunal by re-assessing or re-appreciating the evidence. An award can be challenged only under the grounds mentioned in section 34(2) of the Act. The arbitral tribunal has examined the facts and held that both second respondent and the appellant are liable. The case as put forward by the first respondent has been accepted. Even the minority view was that the second respondent was liable as claimed by the first respondent, but the appellant was not liable only on the ground that the arbitrators appointed by the Stock Exchange under Bye Law 248, in a claim against a non-member, had no jurisdiction to decide a claim against another member. The finding of the majority is that the appellant did the transaction in the name of second respondent and is therefore, liable along with the second respondent. Therefore, in the absence of any ground under section 34(2) of the Act, it is not possible to re-examine the facts to find out whether a different decision can be arrived at.Re : Contention (iii) 17. The appellant contends that the arbitration had used personal knowledge to decide the matter. Attention was drawn to the following observation in the award by the majority : "Also, it is known fact which is known to the arbitrators that as per the market practice such kind of transactions of one Broker takes place with another Broker either in their own name or in their firms name or in the name of different entity which is also owned by the member." Same way these transactions are done by respondent no.2 (appellant herein) in the name of respondent no.1 (second respondent herein)." 18. An arbitral tribunal cannot of course make use of their personal knowledge of the facts of the dispute, which is not a part of the record, to decide the dispute. But an arbitral tribunal can certainly use their expert or technical knowledge or the general knowledge about the particular trade, in deciding a matter. In fact, that is why in many arbitrations, persons with technical knowledge, are appointed as they will be well-versed with the practices and customs in the respective fields. All that the arbitrators have referred is the market practice. That cannot be considered as using some personal knowledge of facts of a transaction, to decide a dispute.Conclusion 19. | 0[ds]10. At the outset, it should be noticed that the arbitration in this case is not an ad hoc arbitration under an arbitration agreement executed between the parties, but was an institutional arbitration under the Bye Laws of the Exchange. All claims, differences, complaints and disputes between two members in relation to any bargain, dealing, transaction or contract is arbitrable by virtue of the parties being members of the Exchange and there is no need for a separate arbitration agreement. In fact, the question whether there was any such bargain, dealing, transaction or contract between members is itself a question that was arbitrable, if there was a dispute. We may in this behalf refer to the relevant Bye-Laws. Bye-law 248 provides for reference to arbitration of any dispute between a member and non-member. Clause (a) thereof relevant for our purpose is extracted belowclaims (whether admitted or not) difference and disputes between a member and a non-member or non- members (the terms `non-member and `non-members shall include a remisier, authorized clerk, a sub- broker who is registered with SEBI as affiliated with that member or employee or any other person with whom the member shares brokerage) arising out of or in relation to dealings, transactions and contracts made subject to the Rules, Bye-laws and Regulations of the Exchange or with reference to anything incidental thereto or in pursuance thereof or relating to their construction, fulfillment or validity or in relation to the rights, obligations and liabilities or remisiers, authorized clerks, sub-brokers, constituents, employees or any other persons with whom the member shares brokerage in relation to such dealings, transactions and contracts shall be referred to and decided by arbitration as provided in the Rules, Bye-laws and Regulations of thebetween members of the Exchange is provided for in Bye Law 282 which is extracted belowclaims, complaints, differences and disputes between members arising out of or in relation to any bargains, dealings, transactions or contracts made subject to the Rules, Bye-laws and Regulations of the Exchange or with reference to anything incidental thereto (including claims, complaints, differences and disputes relating to errors or alleged errors in inputting any data or command in the Exchanges computerized trading system or in execution of any trades on or by such trading system) or anything to be done in pursuance thereof and any question or dispute whether such bargains, dealings, transactions or contracts have been entered into or not shall be subject to arbitration and referred to the Arbitration Committee as provided in these Bye-laws and Regulations.The appellant contends that as the provisions for arbitration are different in regard to a dispute between a member and a non-member and in regard to a dispute between two members, there cannot be a common arbitration in regard to a claim or dispute by a member against another member and a non-member. It is pointed out that in regard to the arbitration in the case of a non-member, the reference is to three arbitrators, each party appointing one arbitrator and the Executive Director of the Exchange appointing the third arbitrator, one of the three arbitrators being a non-member (vide Bye Law 249). On the other hand, in the case of a dispute between a member with another member, the matter is referred to the Arbitration Committee of the Exchange and the said Committee will appoint a three member Tribunal, known as the lower Bench (vide Bye Law 285); and in regard to such arbitration between a member and another member, an appeal is available from the lower bench of Arbitration Committee to the Arbitration Committee constituted by the governing Board. In the case of a dispute between a member and a non-member, no such institutional appeal is available. The appellant contends that the valuable right of appeal was denied by holding a joint arbitration against appellant and second respondent.Reliance is placed on the decision of this Court in Sukanya Holdings (P) Ltd. vs. Jayesh H. Pandya & Anr. [2003 (5) SCC 531 ] wherein this Court held that where a suit is commenced in respect of a matter which falls partly within the arbitration agreement and partly outside and which involves the parties, some of whom are parties to the agreement while some are not, Section 8 of the Act was not attracted and the subject-matter of the suit could not be referred to arbitration, either wholly or by splitting up the causes of action and the parties. The decision in Sukanya Holdings will not apply as we are not concerned with a suit or a situation where there is no provision for arbitration in regard to some of the parties.In this case, the first respondent had a claim for ` 36,98,354.73 jointly against second respondent and the appellant. According to the first respondent, it entered into the transaction with second respondent on the instructions of the appellant and on the understanding that the appellant will also be liable and in fact, the appellant accepting its liability, had also paid ` 13 lakhs as part-payment. It is not disputed that appellant and second respondent were closely held family companies managed by the same person (Ms. Kanan C. Sheth). According to appellant the share holdings in appellant was Kanan C. Seth : 105,000 shares, Chetan M. Sheth : 45000 shares and Jasumati P.Shah: 150,000 shares and the shareholdings in second respondent company was Kanan C.Sheth: 100 shares and Chetan M. Sheth: 100 shares.If A had a claim against B and C, and there was an arbitration agreement between A and B but there was no arbitration agreement between A and C, it might not be possible to have a joint arbitration against B and C. A cannot make a claim against C in an arbitration against B, on the ground that the claim was being made jointly against B and C, as C was not a party to the arbitration agreement. But if A had a claim against B and C and if A had an arbitration agreement with B and A also had a separate arbitration agreement with C, there is no reason why A cannot have a joint arbitration against B & C. Obviously, having an arbitration between A and B and another arbitration between A and C in regard to the same claim would lead to conflicting decisions. In such a case, to deny the benefit of a single arbitration against B and C on the ground that the arbitration agreements against B and C are different, would lead to multiplicity of proceedings, conflicting decisions and cause injustice. It would be proper and just to say that when A has a claim jointly against B and C, and when there are provisions for arbitration in respect of both B and C, there can be a single arbitration. In this case though the arbitration in respect of a non-member is under Bye-law 248 and arbitration in respect of the member is under Bye Law 282, as the Exchange has permitted a single arbitration against both, there could be no impediment for a single arbitration It is this principle that has been applied by the learned Single Judge, and affirmed by the division bench. As first respondent had a single claim against second respondent and appellant and as there was provision for arbitration in regard to both of them, and as the Exchange had permitted a common arbitration, it is not possible to accept the contention of the appellant that there could not be a common arbitration against appellant and second respondent.Re : ContentionA court does not sit in appeal over the award of an arbitral tribunal by re-assessing or re-appreciating the evidence. An award can be challenged only under the grounds mentioned in section 34(2) of the Act. The arbitral tribunal has examined the facts and held that both second respondent and the appellant are liable. The case as put forward by the first respondent has been accepted. Even the minority view was that the second respondent was liable as claimed by the first respondent, but the appellant was not liable only on the ground that the arbitrators appointed by the Stock Exchange under Bye Law 248, in a claim against a non-member, had no jurisdiction to decide a claim against another member. The finding of the majority is that the appellant did the transaction in the name of second respondent and is therefore, liable along with the second respondent. Therefore, in the absence of any ground under section 34(2) of the Act, it is not possible to re-examine the facts to find out whether a different decision can be arrived at.Re : ContentionThe appellant contends that the arbitration had used personal knowledge to decide the matter. Attention was drawn to the following observation in the award by the majorityit is known fact which is known to the arbitrators that as per the market practice such kind of transactions of one Broker takes place with another Broker either in their own name or in their firms name or in the name of different entity which is also owned by the member." Same way these transactions are done by respondent no.2 (appellant herein) in the name of respondent no.1 (second respondentarbitral tribunal cannot of course make use of their personal knowledge of the facts of the dispute, which is not a part of the record, to decide the dispute. But an arbitral tribunal can certainly use their expert or technical knowledge or the general knowledge about the particular trade, in deciding a matter. In fact, that is why in many arbitrations, persons with technical knowledge, are appointed as they will be well-versed with the practices and customs in the respective fields. All that the arbitrators have referred is the market practice. That cannot be considered as using some personal knowledge of facts of a transaction, to decide a dispute. | 0 | 4,037 | 1,793 | ### 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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Anr. [2003 (5) SCC 531 ] wherein this Court held that where a suit is commenced in respect of a matter which falls partly within the arbitration agreement and partly outside and which involves the parties, some of whom are parties to the agreement while some are not, Section 8 of the Act was not attracted and the subject-matter of the suit could not be referred to arbitration, either wholly or by splitting up the causes of action and the parties. The decision in Sukanya Holdings will not apply as we are not concerned with a suit or a situation where there is no provision for arbitration in regard to some of the parties. 14. In this case, the first respondent had a claim for ` 36,98,354.73 jointly against second respondent and the appellant. According to the first respondent, it entered into the transaction with second respondent on the instructions of the appellant and on the understanding that the appellant will also be liable and in fact, the appellant accepting its liability, had also paid ` 13 lakhs as part-payment. It is not disputed that appellant and second respondent were closely held family companies managed by the same person (Ms. Kanan C. Sheth). According to appellant the share holdings in appellant was Kanan C. Seth : 105,000 shares, Chetan M. Sheth : 45000 shares and Jasumati P.Shah: 150,000 shares and the shareholdings in second respondent company was Kanan C.Sheth: 100 shares and Chetan M. Sheth: 100 shares. 15. If A had a claim against B and C, and there was an arbitration agreement between A and B but there was no arbitration agreement between A and C, it might not be possible to have a joint arbitration against B and C. A cannot make a claim against C in an arbitration against B, on the ground that the claim was being made jointly against B and C, as C was not a party to the arbitration agreement. But if A had a claim against B and C and if A had an arbitration agreement with B and A also had a separate arbitration agreement with C, there is no reason why A cannot have a joint arbitration against B & C. Obviously, having an arbitration between A and B and another arbitration between A and C in regard to the same claim would lead to conflicting decisions. In such a case, to deny the benefit of a single arbitration against B and C on the ground that the arbitration agreements against B and C are different, would lead to multiplicity of proceedings, conflicting decisions and cause injustice. It would be proper and just to say that when A has a claim jointly against B and C, and when there are provisions for arbitration in respect of both B and C, there can be a single arbitration. In this case though the arbitration in respect of a non-member is under Bye-law 248 and arbitration in respect of the member is under Bye Law 282, as the Exchange has permitted a single arbitration against both, there could be no impediment for a single arbitration It is this principle that has been applied by the learned Single Judge, and affirmed by the division bench. As first respondent had a single claim against second respondent and appellant and as there was provision for arbitration in regard to both of them, and as the Exchange had permitted a common arbitration, it is not possible to accept the contention of the appellant that there could not be a common arbitration against appellant and second respondent.Re : Contention (ii) 16. A court does not sit in appeal over the award of an arbitral tribunal by re-assessing or re-appreciating the evidence. An award can be challenged only under the grounds mentioned in section 34(2) of the Act. The arbitral tribunal has examined the facts and held that both second respondent and the appellant are liable. The case as put forward by the first respondent has been accepted. Even the minority view was that the second respondent was liable as claimed by the first respondent, but the appellant was not liable only on the ground that the arbitrators appointed by the Stock Exchange under Bye Law 248, in a claim against a non-member, had no jurisdiction to decide a claim against another member. The finding of the majority is that the appellant did the transaction in the name of second respondent and is therefore, liable along with the second respondent. Therefore, in the absence of any ground under section 34(2) of the Act, it is not possible to re-examine the facts to find out whether a different decision can be arrived at.Re : Contention (iii) 17. The appellant contends that the arbitration had used personal knowledge to decide the matter. Attention was drawn to the following observation in the award by the majority : "Also, it is known fact which is known to the arbitrators that as per the market practice such kind of transactions of one Broker takes place with another Broker either in their own name or in their firms name or in the name of different entity which is also owned by the member." Same way these transactions are done by respondent no.2 (appellant herein) in the name of respondent no.1 (second respondent herein)." 18. An arbitral tribunal cannot of course make use of their personal knowledge of the facts of the dispute, which is not a part of the record, to decide the dispute. But an arbitral tribunal can certainly use their expert or technical knowledge or the general knowledge about the particular trade, in deciding a matter. In fact, that is why in many arbitrations, persons with technical knowledge, are appointed as they will be well-versed with the practices and customs in the respective fields. All that the arbitrators have referred is the market practice. That cannot be considered as using some personal knowledge of facts of a transaction, to decide a dispute.Conclusion 19.
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0
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is placed on the decision of this Court in Sukanya Holdings (P) Ltd. vs. Jayesh H. Pandya & Anr. [2003 (5) SCC 531 ] wherein this Court held that where a suit is commenced in respect of a matter which falls partly within the arbitration agreement and partly outside and which involves the parties, some of whom are parties to the agreement while some are not, Section 8 of the Act was not attracted and the subject-matter of the suit could not be referred to arbitration, either wholly or by splitting up the causes of action and the parties. The decision in Sukanya Holdings will not apply as we are not concerned with a suit or a situation where there is no provision for arbitration in regard to some of the parties.In this case, the first respondent had a claim for ` 36,98,354.73 jointly against second respondent and the appellant. According to the first respondent, it entered into the transaction with second respondent on the instructions of the appellant and on the understanding that the appellant will also be liable and in fact, the appellant accepting its liability, had also paid ` 13 lakhs as part-payment. It is not disputed that appellant and second respondent were closely held family companies managed by the same person (Ms. Kanan C. Sheth). According to appellant the share holdings in appellant was Kanan C. Seth : 105,000 shares, Chetan M. Sheth : 45000 shares and Jasumati P.Shah: 150,000 shares and the shareholdings in second respondent company was Kanan C.Sheth: 100 shares and Chetan M. Sheth: 100 shares.If A had a claim against B and C, and there was an arbitration agreement between A and B but there was no arbitration agreement between A and C, it might not be possible to have a joint arbitration against B and C. A cannot make a claim against C in an arbitration against B, on the ground that the claim was being made jointly against B and C, as C was not a party to the arbitration agreement. But if A had a claim against B and C and if A had an arbitration agreement with B and A also had a separate arbitration agreement with C, there is no reason why A cannot have a joint arbitration against B & C. Obviously, having an arbitration between A and B and another arbitration between A and C in regard to the same claim would lead to conflicting decisions. In such a case, to deny the benefit of a single arbitration against B and C on the ground that the arbitration agreements against B and C are different, would lead to multiplicity of proceedings, conflicting decisions and cause injustice. It would be proper and just to say that when A has a claim jointly against B and C, and when there are provisions for arbitration in respect of both B and C, there can be a single arbitration. In this case though the arbitration in respect of a non-member is under Bye-law 248 and arbitration in respect of the member is under Bye Law 282, as the Exchange has permitted a single arbitration against both, there could be no impediment for a single arbitration It is this principle that has been applied by the learned Single Judge, and affirmed by the division bench. As first respondent had a single claim against second respondent and appellant and as there was provision for arbitration in regard to both of them, and as the Exchange had permitted a common arbitration, it is not possible to accept the contention of the appellant that there could not be a common arbitration against appellant and second respondent.Re : ContentionA court does not sit in appeal over the award of an arbitral tribunal by re-assessing or re-appreciating the evidence. An award can be challenged only under the grounds mentioned in section 34(2) of the Act. The arbitral tribunal has examined the facts and held that both second respondent and the appellant are liable. The case as put forward by the first respondent has been accepted. Even the minority view was that the second respondent was liable as claimed by the first respondent, but the appellant was not liable only on the ground that the arbitrators appointed by the Stock Exchange under Bye Law 248, in a claim against a non-member, had no jurisdiction to decide a claim against another member. The finding of the majority is that the appellant did the transaction in the name of second respondent and is therefore, liable along with the second respondent. Therefore, in the absence of any ground under section 34(2) of the Act, it is not possible to re-examine the facts to find out whether a different decision can be arrived at.Re : ContentionThe appellant contends that the arbitration had used personal knowledge to decide the matter. Attention was drawn to the following observation in the award by the majorityit is known fact which is known to the arbitrators that as per the market practice such kind of transactions of one Broker takes place with another Broker either in their own name or in their firms name or in the name of different entity which is also owned by the member." Same way these transactions are done by respondent no.2 (appellant herein) in the name of respondent no.1 (second respondentarbitral tribunal cannot of course make use of their personal knowledge of the facts of the dispute, which is not a part of the record, to decide the dispute. But an arbitral tribunal can certainly use their expert or technical knowledge or the general knowledge about the particular trade, in deciding a matter. In fact, that is why in many arbitrations, persons with technical knowledge, are appointed as they will be well-versed with the practices and customs in the respective fields. All that the arbitrators have referred is the market practice. That cannot be considered as using some personal knowledge of facts of a transaction, to decide a dispute.
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M. Dayanand Reddy Vs. A. P. Industrial Infrastructure Corporation Limited and Others | agreement to arbitrate is enforcement of the agreement to arbitrate and not to damages arising out of such breach. Moreover, there is a further significant difference between an ordinary agreement and an arbitration agreement. In an arbitration agreement, the courts have discretionary power of dispensation of a valid arbitration agreement but the courts have no such power of dispensation of other terms of contract entered between the parties. The very distinctive feature of an agreement for arbitration has been highlighted in the decision in Heyman v. Darwins Ltd. It has been held in North Western Rubber Company and Hunenback & Co., Re ( 1908 (2) KB 907 : 78 LJKB 51) (overruled in Produce Brokers Co. v. Olympia Oil and Cake Co. ( 1916 (1) AC 314 (HL) on other points), that an arbitration agreement in no way classifies the right of the parties under the contract but it relates wholly to the mode of determining the rights. In the backdrop of such position in law relating to an agreement for arbitration, it is to be decided whether the existence of an agreement to refer the dispute to arbitration can be clearly ascertained in the facts and circumstances of the case. This, in turn, depends on the interaction of the parties to be gathered from the relevant documents and surrounding circumstances. In the instant case, it is the specific finding of the learned Judge of the City Civil Court, Hyderabad and also the Andhra Pradesh High Court that in the original agreement signed by the parties, there is no clause for referring the disputes to arbitration. The agreement between the parties in this case has been reduced in writing and has been signed by both the parties. It is therefore not necessary to make any effort for the purpose of finding out as to what were the terms agreed between the parties. The learned Judge, City Civil Court, allowed the application for appointment to arbitrator simply on the ground that a copy of the agreement was forwarded to the appellant with the seal and signature of a competent officer of the Corporation, namely, respondent 2 and in such copy, which was not fabricated by the applicant there was a reference for arbitration as contained in the standard specification. The learned Judge, City Civil Court, also proceeded on the footing that usually in the agreements relating to the nature of the contract, a provision for arbitration is made. As in the original agreement signed between the parties there was no such provision and the agreement was silent on the question as to what would happen if the disputes would arise between the parties, it should be presumed that the parties had really intended to refer the dispute to arbitration in accordance with the standard specifications and in the copy of the agreement which was forwarded to the applicant the provision for arbitration was included. The High Court however, was not inclined to accept this view of the learned Judge of the City Civil Court. The High Court was of the view that it was the signed agreement between the parties which was binding on the parties and only such written terms in the original agreement signed by the parties should be taken into consideration and not the terms contained in the copy of the agreement which was forwarded to the applicant after some time9. It has been indicated hereinbefore that the case of respondent is that through mistake the clause containing the arbitration agreement was not scored out in the copy of the agreement since forwarded to the applicant. The attention of the appellant was drawn to such mistake by the respondents before initiation of the proceedings before the City Civil Court. It also appears that on April 9, 1984, which is long before the agreement dated December 11, 1986, respondent 1, Corporation, came to the decision that arbitration was not really necessary as the aggrieve party to the agreement could always seek redress in a court of law. It was, therefore, decided that the arbitration clause in the standard specifications should be deleted altogether and the agreement was to be finalised in respect of engineering work without any provision for arbitration. It was also indicated that the instruction for deleting the arbitration clause should be followed with immediate effect. If in spite of such policy decision, the original agreement entered between the parties had contained the arbitration clause there is no manner of doubt that the parties to the agreement would have been bound by such arbitration agreement. Admittedly, in the instant case, in the original agreement signed between the parties, there is no clause for arbitration and the reason for absence of arbitration clause can be well explained by the aforesaid policy decision of the Corporation. An arbitration clause may be incorporated by reference to a specific document but the intention to refer to arbitration by such incorporation must be clear and specific. In the instant case, the original agreement signed between the parties does not contain any clause for arbitration. It is not the case of the applicant that the applicant had no occasion to know the terms of the agreement since signed by the parties and there was any clear representation that the copy of agreement was to be followed by the parties and terms contained in the copy were to be treated as the terms of agreement between the parties. Hence, it cannot be held that after the signed agreement the parties had clearly intended to include arbitration clause in the standard specification. In the absence of clear intention of both the parties, agreement for arbitration cannot and should not be inferred more so when the specific case of the respondents is that by mistake the clause relating to arbitration crept in the copy of agreement. In our view, the High Court was justified in holding that in the facts of the case, only the original agreement, and not the copy, was binding between the parties. | 0[ds]8. Under the Arbitration Act, 1940, only an arbitration agreement in writing is recognised buy the Act. It has been held by this Court in Jugal Kishore Rameshwardas v. Mrs. Goolbai Hormusji that it is not necessary that the contract between the parties should be signed by both the parties. But it is necessary that the terms should be reduced in writing and the agreement between the parties on such written terms is established. It has also been held by this Court in Union of India v. A. L. Rallia Ram that it is not necessary that all the terms of the agreement should be contained in one document. Such terms may be ascertained from the correspondence consisting of number of letters. In Rukmanibai Gupta (Smt.) v. Collector, Jabalpur this Court has laid down that an arbitration clause is not required to be stated in any particular form. If the intention of the parties to refer the dispute to arbitration can be clearly ascertained from the terms of the agreement, it is immaterial whether or not the expression arbitration or arbitrator or arbitrators has been used in the agreement. It is also not necessary that agreement to arbitration should appear in the document containing the other terms of agreement between the parties. Law is well settled that arbitration clause may be incorporated by reference to a specific document which is in existence and whose terms are easily ascertainable. It is to be noted, however, that the question whether or not the arbitration clause contained in another document is incorporated in the contract, is always a question of construction. It should also be noted that the arbitration clause is quite distinct from the other clause of the contract. Other clauses of agreement impose obligation which the parties undertake towards each other. But arbitration clause does not impose on any of the parties any obligation in favour of the other party. Such arbitration agreement embodies an agreement between the parties that in case of a dispute, such dispute shall be settled by arbitrator, or umpire of their own constitution or by an arbitrator to be appointed by the Court in an appropriate case. It is pertinent to mention that there is a material difference in an arbitration agreement inasmuch as in an ordinary contract the obligation of the parties to each other cannot, in general, be specifically enforced and breach of such terms of contract results only in damages. The arbitration clause however can be specifically enforced by the machinery of the Arbitration Act. The appropriate remedy for breach of an agreement to arbitrate is enforcement of the agreement to arbitrate and not to damages arising out of such breach. Moreover, there is a further significant difference between an ordinary agreement and an arbitration agreement. In an arbitration agreement, the courts have discretionary power of dispensation of a valid arbitration agreement but the courts have no such power of dispensation of other terms of contract entered between the parties. The very distinctive feature of an agreement for arbitration has been highlighted in the decision inHeyman v. DarwinsLtd. It has been held in NorthWestern Rubber Company and Hunenback & Co., Re ( 1908 (2) KB 907 : 78 LJKB 51) (overruled in Produce Brokers Co. v. Olympia Oil and Cake Co. ( 1916 (1) AC 314 (HL) on otherthat an arbitration agreement in no way classifies the right of the parties under the contract but it relates wholly to the mode of determining the rights. In the backdrop of such position in law relating to an agreement for arbitration, it is to be decided whether the existence of an agreement to refer the dispute to arbitration can be clearly ascertained in the facts and circumstances of the case. This, in turn, depends on the interaction of the parties to be gathered from the relevant documents and surrounding circumstances. In the instant case, it is the specific finding of the learned Judge of the City Civil Court, Hyderabad and also the Andhra Pradesh High Court that in the original agreement signed by the parties, there is no clause for referring the disputes to arbitration. The agreement between the parties in this case has been reduced in writing and has been signed by both the parties. It is therefore not necessary to make any effort for the purpose of finding out as to what were the terms agreed between the parties. The learned Judge, City Civil Court, allowed the application for appointment to arbitrator simply on the ground that a copy of the agreement was forwarded to the appellant with the seal and signature of a competent officer of the Corporation, namely, respondent 2 and in such copy, which was not fabricated by the applicant there was a reference for arbitration as contained in the standard specification. The learned Judge, City Civil Court, also proceeded on the footing that usually in the agreements relating to the nature of the contract, a provision for arbitration is made. As in the original agreement signed between the parties there was no such provision and the agreement was silent on the question as to what would happen if the disputes would arise between the parties, it should be presumed that the parties had really intended to refer the dispute to arbitration in accordance with the standard specifications and in the copy of the agreement which was forwarded to the applicant the provision for arbitration was included. The High Court however, was not inclined to accept this view of the learned Judge of the City Civil Court. The High Court was of the view that it was the signed agreement between the parties which was binding on the parties and only such written terms in the original agreement signed by the parties should be taken into consideration and not the terms contained in the copy of the agreement which was forwarded to the applicant after some time9. It has been indicated hereinbefore that the case of respondent is that through mistake the clause containing the arbitration agreement was not scored out in the copy of the agreement since forwarded to the applicant. The attention of the appellant was drawn to such mistake by the respondents before initiation of the proceedings before the City Civil Court. It also appears that on April 9, 1984, which is long before the agreement dated December 11, 1986, respondent 1, Corporation, came to the decision that arbitration was not really necessary as the aggrieve party to the agreement could always seek redress in a court of law. It was, therefore, decided that the arbitration clause in the standard specifications should be deleted altogether and the agreement was to be finalised in respect of engineering work without any provision for arbitration. It was also indicated that the instruction for deleting the arbitration clause should be followed with immediate effect. If in spite of such policy decision, the original agreement entered between the parties had contained the arbitration clause there is no manner of doubt that the parties to the agreement would have been bound by such arbitration agreement. Admittedly, in the instant case, in the original agreement signed between the parties, there is no clause for arbitration and the reason for absence of arbitration clause can be well explained by the aforesaid policy decision of the Corporation. An arbitration clause may be incorporated by reference to a specific document but the intention to refer to arbitration by such incorporation must be clear and specific. In the instant case, the original agreement signed between the parties does not contain any clause for arbitration. It is not the case of the applicant that the applicant had no occasion to know the terms of the agreement since signed by the parties and there was any clear representation that the copy of agreement was to be followed by the parties and terms contained in the copy were to be treated as the terms of agreement between the parties. Hence, it cannot be held that after the signed agreement the parties had clearly intended to include arbitration clause in the standard specification. In the absence of clear intention of both the parties, agreement for arbitration cannot and should not be inferred more so when the specific case of the respondents is that by mistake the clause relating to arbitration crept in the copy of agreement. In our view, the High Court was justified in holding that in the facts of the case, only the original agreement, and not the copy, was binding between the parties. | 0 | 3,189 | 1,536 | ### 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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agreement to arbitrate is enforcement of the agreement to arbitrate and not to damages arising out of such breach. Moreover, there is a further significant difference between an ordinary agreement and an arbitration agreement. In an arbitration agreement, the courts have discretionary power of dispensation of a valid arbitration agreement but the courts have no such power of dispensation of other terms of contract entered between the parties. The very distinctive feature of an agreement for arbitration has been highlighted in the decision in Heyman v. Darwins Ltd. It has been held in North Western Rubber Company and Hunenback & Co., Re ( 1908 (2) KB 907 : 78 LJKB 51) (overruled in Produce Brokers Co. v. Olympia Oil and Cake Co. ( 1916 (1) AC 314 (HL) on other points), that an arbitration agreement in no way classifies the right of the parties under the contract but it relates wholly to the mode of determining the rights. In the backdrop of such position in law relating to an agreement for arbitration, it is to be decided whether the existence of an agreement to refer the dispute to arbitration can be clearly ascertained in the facts and circumstances of the case. This, in turn, depends on the interaction of the parties to be gathered from the relevant documents and surrounding circumstances. In the instant case, it is the specific finding of the learned Judge of the City Civil Court, Hyderabad and also the Andhra Pradesh High Court that in the original agreement signed by the parties, there is no clause for referring the disputes to arbitration. The agreement between the parties in this case has been reduced in writing and has been signed by both the parties. It is therefore not necessary to make any effort for the purpose of finding out as to what were the terms agreed between the parties. The learned Judge, City Civil Court, allowed the application for appointment to arbitrator simply on the ground that a copy of the agreement was forwarded to the appellant with the seal and signature of a competent officer of the Corporation, namely, respondent 2 and in such copy, which was not fabricated by the applicant there was a reference for arbitration as contained in the standard specification. The learned Judge, City Civil Court, also proceeded on the footing that usually in the agreements relating to the nature of the contract, a provision for arbitration is made. As in the original agreement signed between the parties there was no such provision and the agreement was silent on the question as to what would happen if the disputes would arise between the parties, it should be presumed that the parties had really intended to refer the dispute to arbitration in accordance with the standard specifications and in the copy of the agreement which was forwarded to the applicant the provision for arbitration was included. The High Court however, was not inclined to accept this view of the learned Judge of the City Civil Court. The High Court was of the view that it was the signed agreement between the parties which was binding on the parties and only such written terms in the original agreement signed by the parties should be taken into consideration and not the terms contained in the copy of the agreement which was forwarded to the applicant after some time9. It has been indicated hereinbefore that the case of respondent is that through mistake the clause containing the arbitration agreement was not scored out in the copy of the agreement since forwarded to the applicant. The attention of the appellant was drawn to such mistake by the respondents before initiation of the proceedings before the City Civil Court. It also appears that on April 9, 1984, which is long before the agreement dated December 11, 1986, respondent 1, Corporation, came to the decision that arbitration was not really necessary as the aggrieve party to the agreement could always seek redress in a court of law. It was, therefore, decided that the arbitration clause in the standard specifications should be deleted altogether and the agreement was to be finalised in respect of engineering work without any provision for arbitration. It was also indicated that the instruction for deleting the arbitration clause should be followed with immediate effect. If in spite of such policy decision, the original agreement entered between the parties had contained the arbitration clause there is no manner of doubt that the parties to the agreement would have been bound by such arbitration agreement. Admittedly, in the instant case, in the original agreement signed between the parties, there is no clause for arbitration and the reason for absence of arbitration clause can be well explained by the aforesaid policy decision of the Corporation. An arbitration clause may be incorporated by reference to a specific document but the intention to refer to arbitration by such incorporation must be clear and specific. In the instant case, the original agreement signed between the parties does not contain any clause for arbitration. It is not the case of the applicant that the applicant had no occasion to know the terms of the agreement since signed by the parties and there was any clear representation that the copy of agreement was to be followed by the parties and terms contained in the copy were to be treated as the terms of agreement between the parties. Hence, it cannot be held that after the signed agreement the parties had clearly intended to include arbitration clause in the standard specification. In the absence of clear intention of both the parties, agreement for arbitration cannot and should not be inferred more so when the specific case of the respondents is that by mistake the clause relating to arbitration crept in the copy of agreement. In our view, the High Court was justified in holding that in the facts of the case, only the original agreement, and not the copy, was binding between the parties.
### Response:
0
### Explanation:
remedy for breach of an agreement to arbitrate is enforcement of the agreement to arbitrate and not to damages arising out of such breach. Moreover, there is a further significant difference between an ordinary agreement and an arbitration agreement. In an arbitration agreement, the courts have discretionary power of dispensation of a valid arbitration agreement but the courts have no such power of dispensation of other terms of contract entered between the parties. The very distinctive feature of an agreement for arbitration has been highlighted in the decision inHeyman v. DarwinsLtd. It has been held in NorthWestern Rubber Company and Hunenback & Co., Re ( 1908 (2) KB 907 : 78 LJKB 51) (overruled in Produce Brokers Co. v. Olympia Oil and Cake Co. ( 1916 (1) AC 314 (HL) on otherthat an arbitration agreement in no way classifies the right of the parties under the contract but it relates wholly to the mode of determining the rights. In the backdrop of such position in law relating to an agreement for arbitration, it is to be decided whether the existence of an agreement to refer the dispute to arbitration can be clearly ascertained in the facts and circumstances of the case. This, in turn, depends on the interaction of the parties to be gathered from the relevant documents and surrounding circumstances. In the instant case, it is the specific finding of the learned Judge of the City Civil Court, Hyderabad and also the Andhra Pradesh High Court that in the original agreement signed by the parties, there is no clause for referring the disputes to arbitration. The agreement between the parties in this case has been reduced in writing and has been signed by both the parties. It is therefore not necessary to make any effort for the purpose of finding out as to what were the terms agreed between the parties. The learned Judge, City Civil Court, allowed the application for appointment to arbitrator simply on the ground that a copy of the agreement was forwarded to the appellant with the seal and signature of a competent officer of the Corporation, namely, respondent 2 and in such copy, which was not fabricated by the applicant there was a reference for arbitration as contained in the standard specification. The learned Judge, City Civil Court, also proceeded on the footing that usually in the agreements relating to the nature of the contract, a provision for arbitration is made. As in the original agreement signed between the parties there was no such provision and the agreement was silent on the question as to what would happen if the disputes would arise between the parties, it should be presumed that the parties had really intended to refer the dispute to arbitration in accordance with the standard specifications and in the copy of the agreement which was forwarded to the applicant the provision for arbitration was included. The High Court however, was not inclined to accept this view of the learned Judge of the City Civil Court. The High Court was of the view that it was the signed agreement between the parties which was binding on the parties and only such written terms in the original agreement signed by the parties should be taken into consideration and not the terms contained in the copy of the agreement which was forwarded to the applicant after some time9. It has been indicated hereinbefore that the case of respondent is that through mistake the clause containing the arbitration agreement was not scored out in the copy of the agreement since forwarded to the applicant. The attention of the appellant was drawn to such mistake by the respondents before initiation of the proceedings before the City Civil Court. It also appears that on April 9, 1984, which is long before the agreement dated December 11, 1986, respondent 1, Corporation, came to the decision that arbitration was not really necessary as the aggrieve party to the agreement could always seek redress in a court of law. It was, therefore, decided that the arbitration clause in the standard specifications should be deleted altogether and the agreement was to be finalised in respect of engineering work without any provision for arbitration. It was also indicated that the instruction for deleting the arbitration clause should be followed with immediate effect. If in spite of such policy decision, the original agreement entered between the parties had contained the arbitration clause there is no manner of doubt that the parties to the agreement would have been bound by such arbitration agreement. Admittedly, in the instant case, in the original agreement signed between the parties, there is no clause for arbitration and the reason for absence of arbitration clause can be well explained by the aforesaid policy decision of the Corporation. An arbitration clause may be incorporated by reference to a specific document but the intention to refer to arbitration by such incorporation must be clear and specific. In the instant case, the original agreement signed between the parties does not contain any clause for arbitration. It is not the case of the applicant that the applicant had no occasion to know the terms of the agreement since signed by the parties and there was any clear representation that the copy of agreement was to be followed by the parties and terms contained in the copy were to be treated as the terms of agreement between the parties. Hence, it cannot be held that after the signed agreement the parties had clearly intended to include arbitration clause in the standard specification. In the absence of clear intention of both the parties, agreement for arbitration cannot and should not be inferred more so when the specific case of the respondents is that by mistake the clause relating to arbitration crept in the copy of agreement. In our view, the High Court was justified in holding that in the facts of the case, only the original agreement, and not the copy, was binding between the parties.
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Kuldeep Singh Vs. Govt. Of Nct Of Delhi | required to be verified. For the said purpose, the applications were required to be strictly scrutinized. [See Ashok Lenka (supra)] 27. Unless, therefore, an accrued or vested right had been derived by the Appellants, the policy decision could have been changed. What would be an acquired or accrued right in the present situation is the question. 28. In Director of Public Works and Another v. HO PO Sang and Others [(1961) AC 901], the Privy Council considered the said question having regard to the repealing provisions of Landlord and Tenant Ordinance, 1947 as amended on 9th April, 1957. It was held that having regard to the repeal of Sections 3A to 3E, when applications remained pending, no accrued or vested right was derived stating: In summary, the application of the second appellant for a rebuilding certificate conferred no right on him which was preserved after the repeal of sections 3A-E, but merely conferred hope or expectation that the Governor in Council would exercise his executive or ministerial discretion in his favour and the first appellant would thereafter issue a certificate. Similarly, the issue by the first appellant of notice of intention to grant a rebuilding certificate conferred no right on the second appellant which was preserved after the repeal, but merely instituted a procedure whereby the matter could be referred to the Governor in Council. The repeal disentitled the first appellant from thereafter issuing any rebuilding certificate where the matter had been referred by petition to the Governor in Council but had not been determined by the Governor. [See also Lakshmi Amma alias Echuma Amma v. Devassy 1970 KLT 204.] 29. The question again came up for consideration in Howrah Municipal Corpn. and Others v. Ganges Rope Co. Ltd. and Others [(2004) 1 SCC 663] wherein this Court categorically held: The context in which the respondent Company claims a vested right for sanction and which has been accepted by the Division Bench of the High Court, is not a right in relation to ownership or possession of any property for which the expression vest is generally used. What we can understand from the claim of a vested right set up by the respondent Company is that on the basis of the Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the Court for its consideration, it had a legitimate or settled expectation to obtain the sanction. In our considered opinion, such settled expectation, if any, did not create any vested right to obtain sanction. True it is, that the respondent Company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule-making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such settled expectation has been rendered impossible of fulfilment due to change in law. The claim based on the alleged vested right or settled expectation cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such vested right or settled expectation is being sought to be enforced. The vested right or settled expectation has been nullified not only by the Corporation but also by the State by amending the Building Rules. Besides this, such a settled expectation or the so-called vested right cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon. 30. In Union of India and Others v. Indian Charge Chrome and Another [(1999) 7 SCC 314] , again this Court emphasized: The application has to be decided in accordance with the law applicable on the date on which the authority granting the registration is called upon to apply its mind to the prayer for registration 31. In S.B. International Ltd. and Others v. Asstt. Director General of Foreign Trade and Others [(1996) 2 SCC 439] , this Court repelled a contention that the authorities cannot take advantage of heir own wrong, viz., delay in issuing the advance licence stating: We have mentioned hereinbefore that issuance of these licences is not a formality nor a mere ministerial function but that it requires due verification and formation of satisfaction as to compliance with all the relevant provisions 32. In a case of this nature where the State has the exclusive privilege and the citizen has no fundamental right to carry on business in liquor, in our opinion, the policy which would be applicable is the one which is prevalent on the date of grant and not the one, on which the application had been filed. If a policy decision had been taken on 16.9.2005 not to grant L-52 licence, no licence could have been granted after the said date. 33. In any event the period for which licences could be directed to the appellants has since expired. This Court, thus, cannot direct grant of licence for the next year only because some licences had been granted after 9th March, 2005. Article 14 of the Constitution of India carries with it a positive concept. Equality cannot be claimed in illegalities. [See State of U.P. v. Raj Kumar Sharma, (2006) 3 SCJ 713 ] We have moreover noticed hereinbefore, the statement made by the learned Additional Solicitor General that steps would be taken for cancellation of licences of those licensees who had been granted licence after the said date. We do not intend to make any further observation in regard thereto. 34. It is true that some licences had been granted, but the same cannot by itself be a ground to issue a writ of mandamus, particularly in view of the fact that the appellants have no legal right in respect thereof. 35. | 1[ds]In a case of this nature where the State has the exclusive privilege and the citizen has no fundamental right to carry on business in liquor, in our opinion, the policy which would be applicable is the one which is prevalent on the date of grant and not the one, on which the application had been filed. If a policy decision had been taken on 16.9.2005 not to grant L-52 licence, no licence could have been granted after the said dateIn any event the period for which licences could be directed to the appellants has since expired. This Court, thus, cannot direct grant of licence for the next year only because some licences had been granted after 9th March, 2005. Article 14 of the Constitution of India carries with it a positive concept. Equality cannot be claimed in illegalities. [See State of U.P. v. Raj Kumar Sharma, (2006) 3 SCJ 713 ] We have moreover noticed hereinbefore, the statement made by the learned Additional Solicitor General that steps would be taken for cancellation of licences of those licensees who had been granted licence after the said date. We do not intend to make any further observation in regard theretoIt is true that some licences had been granted, but the same cannot by itself be a ground to issue a writ of mandamus, particularly in view of the fact that the appellants have no legal right in respect thereof | 1 | 4,687 | 266 | ### 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:
required to be verified. For the said purpose, the applications were required to be strictly scrutinized. [See Ashok Lenka (supra)] 27. Unless, therefore, an accrued or vested right had been derived by the Appellants, the policy decision could have been changed. What would be an acquired or accrued right in the present situation is the question. 28. In Director of Public Works and Another v. HO PO Sang and Others [(1961) AC 901], the Privy Council considered the said question having regard to the repealing provisions of Landlord and Tenant Ordinance, 1947 as amended on 9th April, 1957. It was held that having regard to the repeal of Sections 3A to 3E, when applications remained pending, no accrued or vested right was derived stating: In summary, the application of the second appellant for a rebuilding certificate conferred no right on him which was preserved after the repeal of sections 3A-E, but merely conferred hope or expectation that the Governor in Council would exercise his executive or ministerial discretion in his favour and the first appellant would thereafter issue a certificate. Similarly, the issue by the first appellant of notice of intention to grant a rebuilding certificate conferred no right on the second appellant which was preserved after the repeal, but merely instituted a procedure whereby the matter could be referred to the Governor in Council. The repeal disentitled the first appellant from thereafter issuing any rebuilding certificate where the matter had been referred by petition to the Governor in Council but had not been determined by the Governor. [See also Lakshmi Amma alias Echuma Amma v. Devassy 1970 KLT 204.] 29. The question again came up for consideration in Howrah Municipal Corpn. and Others v. Ganges Rope Co. Ltd. and Others [(2004) 1 SCC 663] wherein this Court categorically held: The context in which the respondent Company claims a vested right for sanction and which has been accepted by the Division Bench of the High Court, is not a right in relation to ownership or possession of any property for which the expression vest is generally used. What we can understand from the claim of a vested right set up by the respondent Company is that on the basis of the Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the Court for its consideration, it had a legitimate or settled expectation to obtain the sanction. In our considered opinion, such settled expectation, if any, did not create any vested right to obtain sanction. True it is, that the respondent Company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule-making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such settled expectation has been rendered impossible of fulfilment due to change in law. The claim based on the alleged vested right or settled expectation cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such vested right or settled expectation is being sought to be enforced. The vested right or settled expectation has been nullified not only by the Corporation but also by the State by amending the Building Rules. Besides this, such a settled expectation or the so-called vested right cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon. 30. In Union of India and Others v. Indian Charge Chrome and Another [(1999) 7 SCC 314] , again this Court emphasized: The application has to be decided in accordance with the law applicable on the date on which the authority granting the registration is called upon to apply its mind to the prayer for registration 31. In S.B. International Ltd. and Others v. Asstt. Director General of Foreign Trade and Others [(1996) 2 SCC 439] , this Court repelled a contention that the authorities cannot take advantage of heir own wrong, viz., delay in issuing the advance licence stating: We have mentioned hereinbefore that issuance of these licences is not a formality nor a mere ministerial function but that it requires due verification and formation of satisfaction as to compliance with all the relevant provisions 32. In a case of this nature where the State has the exclusive privilege and the citizen has no fundamental right to carry on business in liquor, in our opinion, the policy which would be applicable is the one which is prevalent on the date of grant and not the one, on which the application had been filed. If a policy decision had been taken on 16.9.2005 not to grant L-52 licence, no licence could have been granted after the said date. 33. In any event the period for which licences could be directed to the appellants has since expired. This Court, thus, cannot direct grant of licence for the next year only because some licences had been granted after 9th March, 2005. Article 14 of the Constitution of India carries with it a positive concept. Equality cannot be claimed in illegalities. [See State of U.P. v. Raj Kumar Sharma, (2006) 3 SCJ 713 ] We have moreover noticed hereinbefore, the statement made by the learned Additional Solicitor General that steps would be taken for cancellation of licences of those licensees who had been granted licence after the said date. We do not intend to make any further observation in regard thereto. 34. It is true that some licences had been granted, but the same cannot by itself be a ground to issue a writ of mandamus, particularly in view of the fact that the appellants have no legal right in respect thereof. 35.
### Response:
1
### Explanation:
In a case of this nature where the State has the exclusive privilege and the citizen has no fundamental right to carry on business in liquor, in our opinion, the policy which would be applicable is the one which is prevalent on the date of grant and not the one, on which the application had been filed. If a policy decision had been taken on 16.9.2005 not to grant L-52 licence, no licence could have been granted after the said dateIn any event the period for which licences could be directed to the appellants has since expired. This Court, thus, cannot direct grant of licence for the next year only because some licences had been granted after 9th March, 2005. Article 14 of the Constitution of India carries with it a positive concept. Equality cannot be claimed in illegalities. [See State of U.P. v. Raj Kumar Sharma, (2006) 3 SCJ 713 ] We have moreover noticed hereinbefore, the statement made by the learned Additional Solicitor General that steps would be taken for cancellation of licences of those licensees who had been granted licence after the said date. We do not intend to make any further observation in regard theretoIt is true that some licences had been granted, but the same cannot by itself be a ground to issue a writ of mandamus, particularly in view of the fact that the appellants have no legal right in respect thereof
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UOI Vs. Sita Ram Jaiswal | plaintiff respondent was entitled to the sum for supply of Mac Intyre Sleeves because the same were not supplied gratuitously.3. The appellant denied in the written statement that there was any enforceable contract, and, therefore, the respondent was not entitled to sue for price of the goods delivered. The appellant took the plea bar of the suit that there was no contract in compliance with section 175 of the Government of India Act, 1935. The appellant pleaded to the alternative case of the respondent by alleging that the goods were lawfully rejected because the goods were found not to be of the correct description and quality. The appellant further denied that the rejected goods were retained after lapse of reasonable time without intimating the rejection.4. At the trial the respondent found that the claim for the sum of money as price of goods could not be sustained because of lack of enforceability of contract. The respondent therefore sought to make the appellant liable to compensate the respondent by reason of provisions contained in section 70 of the Indian Contract Act.Counsel for the appellant raised the plea at the trial that there. was no foundation in the plaint for any case under section 70 of the Indian Contract Act.5. The three ingredients to support the cause of action under section 70 of the Indian Contract Act are these: First, the goods are to be delivered lawfully or anything has to be done for an other person lawfully. Second, the thing done or the goods delivered is so done or delivered not intending to do so gratuitously. Third, the person to whom the goods are delivered enjoys the benefit thereof. It is only when the three ingredients are pleaded in the plaint that a cause. of action is constituted under section 70 of the Indian Contract Act.6. If any plaintiff pleads the three ingredients and proves the three features the defendant is then bound to make compensation-in respect of or to restore the things so done or delivered.7. The allegation in the plaint in the present case was as follows. In any event the plaintiff is entitled to the said sum of Rs. 26, 248-7-0, and Rs. 50, 442-11-0 with interest for the said Mac Intyre Sleeves, Copper Strips and Stay Shackles for the same were not supplied gratuitiously. The plaint lacked the two other essential features to constitute a cause of action under section 70 of the Indian Contract Act. These were that the respondent delivered the goods lawfully to the appellant and that the appellant enjoyed the benefits thereof. The Court should not have allowed the respondent to go to trial in the present case with a Claim under section 70 of the Indian Contract Act in the absence of proper pleadings.8. In view of the fact that parties went to trial and issues were raised on claims under section 70 of the Indian Con- tract Act and the litigation went through the course of trial and appeal we do not desire to non-suit the respondent at this stage.The trial court held that the goods were not properly rejected. But the trial court also held that the wordings of the rejection memos negatived any case of enjoyment of benefit. The trial court s aid that the documents show that the goods were not utilised or used by the appellant and the appellant disclaimed interest in the goods. The trial court also found that the respondent accepted the goods. The finding s are inconsistent. The trial court held that the appellant offered to restore the goods to the respondent but the respondent refused to take them back. The trial court dismissed the suit. When the trial court found that the goods were accepted there could be no question of restoration. The trial court should have decreed the suit.9. The Division Bench on appeal held that the goods were accepted by the appellant. The Division Bench held that title to the goods passed and if title passed then the whole context of section 70 of the Indian Contract Act would be irrelevant. The judgment of the Division Bench is confused. The Division Bench treated the case of the respondent to be a claim for damages for wrongful rejection. Under the Sale of Goods Act when there is any enforceable contract the seller may claim for price of goods sold or damages for non acceptance. The present case could not be supported on the footing of any enforceable contract giving rise to damages for non-acceptance or wrongful rejection. The reasoning of the Division Bench in allowing the claim is erroneous. 10. The evidence in the present case as found by the trial court is that the signatures of Rodericks and Francis on the challans indicate acceptance of the goods, and, , therefore, the reject ion is wrongful. The finding of the trial court that there was acceptance of the goods obviously repels any plea of rejection of the goods.The error of the trial court was that it found the goods were accepted and yet dismissed the suit on the reasoning that the appellant offered to restore the goods. The error of the Division Bench was in decreasing the suit not on the principles of section 70 of the Indian Contract Act but on damages for non acceptance of goods on the footing of unenforceable contract for sale of goods. 11. In view of the fact that there was acceptance of the goods no question of restoration arises. Counsel for respondent argued that restoration under section 70 of the Indian Contract Act meant that the defendant would have to restore the goods to the plaintiff by delivering the same to the plaintiff. This contention of the plaintiff respondent is utterly unsound. As long as there is intimation by the defendant to the plaintiff that the plaintiff can take back the goods the defendant evinces intention of restoration. In the present case no question of restoration arises because of the acceptance of the goods. 12. | 1[ds]The Division Bench on appeal held that the goods were accepted by the appellant. The Division Bench held that title to the goods passed and if title passed then the whole context of section 70 of the Indian Contract Act would be irrelevant. The judgment of the Division Bench is confused. The Division Bench treated the case of the respondent to be a claim for damages for wrongful rejection. Under the Sale of Goods Act when there is any enforceable contract the seller may claim for price of goods sold or damages for non acceptance. The present case could not be supported on the footing of any enforceable contract giving rise to damages fore or wrongful rejection. The reasoning of the Division Bench in allowing the claim is erroneousThe evidence in the present case as found by the trial court is that the signatures of Rodericks and Francis on the challans indicate acceptance of the goods, and, , therefore, the reject ion is wrongful. The finding of the trial court that there was acceptance of the goods obviously repels any plea of rejection of the goods.The error of the trial court was that it found the goods were accepted and yet dismissed the suit on the reasoning that the appellant offered to restore the goods. The error of the Division Bench was in decreasing the suit not on the principles of section 70 of the Indian Contract Act but on damages for non acceptance of goods on the footing of unenforceable contract for sale of goodsIn view of the fact that there was acceptance of the goods no question of restoration arises. Counsel for respondent argued that restoration under section 70 of the Indian Contract Act meant that the defendant would have to restore the goods to the plaintiff by delivering the same to the plaintiff. This contention of the plaintiff respondent is utterly unsound. As long as there is intimation by the defendant to the plaintiff that the plaintiff can take back the goods the defendant evinces intention of restoration. In the present case no question of restoration arises because of the acceptance of the goods. | 1 | 1,223 | 377 | ### 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:
plaintiff respondent was entitled to the sum for supply of Mac Intyre Sleeves because the same were not supplied gratuitously.3. The appellant denied in the written statement that there was any enforceable contract, and, therefore, the respondent was not entitled to sue for price of the goods delivered. The appellant took the plea bar of the suit that there was no contract in compliance with section 175 of the Government of India Act, 1935. The appellant pleaded to the alternative case of the respondent by alleging that the goods were lawfully rejected because the goods were found not to be of the correct description and quality. The appellant further denied that the rejected goods were retained after lapse of reasonable time without intimating the rejection.4. At the trial the respondent found that the claim for the sum of money as price of goods could not be sustained because of lack of enforceability of contract. The respondent therefore sought to make the appellant liable to compensate the respondent by reason of provisions contained in section 70 of the Indian Contract Act.Counsel for the appellant raised the plea at the trial that there. was no foundation in the plaint for any case under section 70 of the Indian Contract Act.5. The three ingredients to support the cause of action under section 70 of the Indian Contract Act are these: First, the goods are to be delivered lawfully or anything has to be done for an other person lawfully. Second, the thing done or the goods delivered is so done or delivered not intending to do so gratuitously. Third, the person to whom the goods are delivered enjoys the benefit thereof. It is only when the three ingredients are pleaded in the plaint that a cause. of action is constituted under section 70 of the Indian Contract Act.6. If any plaintiff pleads the three ingredients and proves the three features the defendant is then bound to make compensation-in respect of or to restore the things so done or delivered.7. The allegation in the plaint in the present case was as follows. In any event the plaintiff is entitled to the said sum of Rs. 26, 248-7-0, and Rs. 50, 442-11-0 with interest for the said Mac Intyre Sleeves, Copper Strips and Stay Shackles for the same were not supplied gratuitiously. The plaint lacked the two other essential features to constitute a cause of action under section 70 of the Indian Contract Act. These were that the respondent delivered the goods lawfully to the appellant and that the appellant enjoyed the benefits thereof. The Court should not have allowed the respondent to go to trial in the present case with a Claim under section 70 of the Indian Contract Act in the absence of proper pleadings.8. In view of the fact that parties went to trial and issues were raised on claims under section 70 of the Indian Con- tract Act and the litigation went through the course of trial and appeal we do not desire to non-suit the respondent at this stage.The trial court held that the goods were not properly rejected. But the trial court also held that the wordings of the rejection memos negatived any case of enjoyment of benefit. The trial court s aid that the documents show that the goods were not utilised or used by the appellant and the appellant disclaimed interest in the goods. The trial court also found that the respondent accepted the goods. The finding s are inconsistent. The trial court held that the appellant offered to restore the goods to the respondent but the respondent refused to take them back. The trial court dismissed the suit. When the trial court found that the goods were accepted there could be no question of restoration. The trial court should have decreed the suit.9. The Division Bench on appeal held that the goods were accepted by the appellant. The Division Bench held that title to the goods passed and if title passed then the whole context of section 70 of the Indian Contract Act would be irrelevant. The judgment of the Division Bench is confused. The Division Bench treated the case of the respondent to be a claim for damages for wrongful rejection. Under the Sale of Goods Act when there is any enforceable contract the seller may claim for price of goods sold or damages for non acceptance. The present case could not be supported on the footing of any enforceable contract giving rise to damages for non-acceptance or wrongful rejection. The reasoning of the Division Bench in allowing the claim is erroneous. 10. The evidence in the present case as found by the trial court is that the signatures of Rodericks and Francis on the challans indicate acceptance of the goods, and, , therefore, the reject ion is wrongful. The finding of the trial court that there was acceptance of the goods obviously repels any plea of rejection of the goods.The error of the trial court was that it found the goods were accepted and yet dismissed the suit on the reasoning that the appellant offered to restore the goods. The error of the Division Bench was in decreasing the suit not on the principles of section 70 of the Indian Contract Act but on damages for non acceptance of goods on the footing of unenforceable contract for sale of goods. 11. In view of the fact that there was acceptance of the goods no question of restoration arises. Counsel for respondent argued that restoration under section 70 of the Indian Contract Act meant that the defendant would have to restore the goods to the plaintiff by delivering the same to the plaintiff. This contention of the plaintiff respondent is utterly unsound. As long as there is intimation by the defendant to the plaintiff that the plaintiff can take back the goods the defendant evinces intention of restoration. In the present case no question of restoration arises because of the acceptance of the goods. 12.
### Response:
1
### Explanation:
The Division Bench on appeal held that the goods were accepted by the appellant. The Division Bench held that title to the goods passed and if title passed then the whole context of section 70 of the Indian Contract Act would be irrelevant. The judgment of the Division Bench is confused. The Division Bench treated the case of the respondent to be a claim for damages for wrongful rejection. Under the Sale of Goods Act when there is any enforceable contract the seller may claim for price of goods sold or damages for non acceptance. The present case could not be supported on the footing of any enforceable contract giving rise to damages fore or wrongful rejection. The reasoning of the Division Bench in allowing the claim is erroneousThe evidence in the present case as found by the trial court is that the signatures of Rodericks and Francis on the challans indicate acceptance of the goods, and, , therefore, the reject ion is wrongful. The finding of the trial court that there was acceptance of the goods obviously repels any plea of rejection of the goods.The error of the trial court was that it found the goods were accepted and yet dismissed the suit on the reasoning that the appellant offered to restore the goods. The error of the Division Bench was in decreasing the suit not on the principles of section 70 of the Indian Contract Act but on damages for non acceptance of goods on the footing of unenforceable contract for sale of goodsIn view of the fact that there was acceptance of the goods no question of restoration arises. Counsel for respondent argued that restoration under section 70 of the Indian Contract Act meant that the defendant would have to restore the goods to the plaintiff by delivering the same to the plaintiff. This contention of the plaintiff respondent is utterly unsound. As long as there is intimation by the defendant to the plaintiff that the plaintiff can take back the goods the defendant evinces intention of restoration. In the present case no question of restoration arises because of the acceptance of the goods.
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THE STATE OF ODISHA Vs. MANJU NAIK | qualifying service prescribed in the Pension Rules must be satisfied to become eligible for invalid pension and the arguments made to the contrary that invalid pension can be claimed under Rule 39 without satisfying the stipulated qualifying service mentioned in the same Rules, do not appeal to us. The respondents husband who had served for lesser years then the 10 years qualifying service, was found entitled by his employers to service gratuity only, because of his premature retirement on the ground of mental incapacitation and this is what is prescribed by the Pension Rules. The dues toward service gratuity was paid accordingly. The Pension Rules definitely envisaged that there could be a situation where an employee may not be eligible for pension benefits for not satisfying the prescribed qualifying service of 10 years. For those with less than 10 years service, the Pension Rules provide for gratuity payment and therefore, it is difficult for us to conclude that for invalid pension, qualifying years of service, can be ignored. 22. The above view of ours is supported by the ratio in Union of India and Another Vs. Bashirbhai R. Khiliji (2007) 6 SCC 16 , where this Court was considering claim for invalid pension for an armed constable in the CRPF who suffered from pyrogenic meningitis and neurosensory deafness (bilateral). In that case, the CRPF personnel was declared unfit for active duty, and he was invalidated from service. He applied to authorities for invalid pension but that was rejected on the ground that he had not completed the qualifying service of 10 years. Instead, he was paid service gratuity. The High Court in that case however, took the view that since the CRPF Constables invalidity was 100 per cent, he was entitled to invalid pension and the stipulation of 10 years of qualifying service could not be invoked to deny him the invalid pension. However, Justice A.K. Mathur, speaking for a two judge Bench of this Court while interpreting similar provisions in the applicable Rules, negated the High Courts view and pronounced on the issue of qualifying service for invalid pension, in the following manner:- . . . . . . . . . . . . . . . . . . . . . . 9. We are presently concerned with two provisions of the Rules i.e., Rule 38 and 49. Rule 38, as reproduced above, contemplates the invalid pension. The procedure has been mentioned therein i.e. in case an incumbent retires from service on account of bodily or mental infirmity which permanently incapacitated him for the service, then a medical certificate of incapacity shall be given by the authorities concerned and in particular Form 23 the same may be applied before the competent authority. It is true that the qualifying service is not mentioned in Rule 38 but Rule 49 which deals with the amount of pension stipulates that a government servant retiring in accordance with the provisions of these Rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half months emoluments for every completed six-monthly period of qualifying service. Therefore, the minimum qualifying service of ten years is mentioned in Rule 49. The word qualifying service has been defined in Rule 3(1)(q) of the Rules which read as under: 3. (1)(q) qualifying service means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these Rules;10. Therefore, the minimum qualifying service which is required for the pension as mentioned in Rule 49, is ten years. The qualifying service has been explained in various memos issued by the Government of India from time to time. But Rule 49 read with Rule 38 makes it clear that qualifying service of pension is ten years and therefore, gratuity is determined after completion of qualifying service of ten years. Therefore, for grant of any kind of pension one has to put in the minimum of ten years of qualifying service. The respondent in the present case, does not have the minimum qualifying service. Therefore, the authorities declined to grant him the invalid pension. But the amount of gratuity has been determined and the same was paid to him. . . . . . . . .. . . . . . . . . . . . . . (Underlining added) 23. The above enunciation of the law on requirement of qualifying service for invalid pension by the bench of two judges is reiterated and approved by us. 24. In a case like this, the need for compassion and the compliance of the norms has to be balanced. As earlier noted, the allowable gratuity benefits were granted on account of the respondents husband and after he died, the widow was appointed (on 12.6.2006) in a government job under the Rehabilitation Assistance Scheme. Thus, the needed means of sustenance was provided to the deceaseds family. 25. The respondents husband had not served for ten years and was therefore, he disentitled for regular pension. For the same reason, he cannot also be held entitled to invalid pension. The different provisions of the Pension Rules cannot be read in isolation and must be construed harmoniously and the requirement of qualifying service cannot be said to be irrelevant for claiming different service benefits under the same Rules. Here the employee did not satisfy the requirement of qualifying service and therefore the invalid pension could not have been ordered for him, under Rule 39 of the Pension Rules. 26. In the above context, it will bear emphasis that the respondent never prayed for invalid pension for her husband in her O.A. and yet the Tribunal as well as the High Court granted her the unclaimed relief. Such additional munificence, in addition to the job provided to the first respondent under the Rehabilitation Assistance Scheme for the sustenance of the deceaseds family, in our view, was unwarranted and the impugned order cannot be sustained. | 1[ds]19. The respondents husband was retired on the ground of mental infirmity and hence the service gratuity was paid and the widow had received the same, without any demur. She never raised any claim for invalid pension either at the time of retirement on 6.7.1996 or even when she approached the Tribunal i.e. 14 years later in the year 2010. Nevertheless, the Tribunal went beyond the prayers in the O.A. No. 18(B)/2010 and ordered for invalid pension for late Sagar Naik and then following his death, ordered for family pension for the widow. In declaring such entitlement the High Court and the Tribunal however ignored the qualifying service of ten years as prescribed in the Pension Rules although the State specifically argued that the qualifying service criterion has to be satisfied not only for the regular pension but also for the invalid pension since both claims are to be considered under the very same Pension Rules21. The condition of qualifying service prescribed in the Pension Rules must be satisfied to become eligible for invalid pension and the arguments made to the contrary that invalid pension can be claimed under Rule 39 without satisfying the stipulated qualifying service mentioned in the same Rules, do not appeal to us. The respondents husband who had served for lesser years then the 10 years qualifying service, was found entitled by his employers to service gratuity only, because of his premature retirement on the ground of mental incapacitation and this is what is prescribed by the Pension Rules. The dues toward service gratuity was paid accordingly. The Pension Rules definitely envisaged that there could be a situation where an employee may not be eligible for pension benefits for not satisfying the prescribed qualifying service of 10 years. For those with less than 10 years service, the Pension Rules provide for gratuity payment and therefore, it is difficult for us to conclude that for invalid pension, qualifying years of service, can be ignored22. The above view of ours is supported by the ratio in Union of India and Another Vs. Bashirbhai R. Khiliji (2007) 6 SCC 16 , where this Court was considering claim for invalid pension for an armed constable in the CRPF who suffered from pyrogenic meningitis and neurosensory deafness (bilateral). In that case, the CRPF personnel was declared unfit for active duty, and he was invalidated from service. He applied to authorities for invalid pension but that was rejected on the ground that he had not completed the qualifying service of 10 years. Instead, he was paid service gratuity. The High Court in that case however, took the view that since the CRPF Constables invalidity was 100 per cent, he was entitled to invalid pension and the stipulation of 10 years of qualifying service could not be invoked to deny him the invalid pension. However, Justice A.K. Mathur, speaking for a two judge Bench of this Court while interpreting similar provisions in the applicable Rules, negated the High Courts view and pronounced on the issue of qualifying service for invalid pension, in the following manner:-. . . . . . . . . . . . . . . . . . . . .9. We are presently concerned with two provisions of the Rules i.e., Rule 38 and 49. Rule 38, as reproduced above, contemplates the invalid pension. The procedure has been mentioned therein i.e. in case an incumbent retires from service on account of bodily or mental infirmity which permanently incapacitated him for the service, then a medical certificate of incapacity shall be given by the authorities concerned and in particular Form 23 the same may be applied before the competent authority. It is true that the qualifying service is not mentioned in Rule 38 but Rule 49 which deals with the amount of pension stipulates that a government servant retiring in accordance with the provisions of these Rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half months emoluments for every completed six-monthly period of qualifying service. Therefore, the minimum qualifying service of ten years is mentioned in Rule 49. The word qualifying service has been defined in Rule 3(1)(q) of the Rules which read as under:3. (1)(q) qualifying service means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these Rules;10. Therefore, the minimum qualifying service which is required for the pension as mentioned in Rule 49, is ten years. The qualifying service has been explained in various memos issued by the Government of India from time to time. But Rule 49 read with Rule 38 makes it clear that qualifying service of pension is ten years and therefore, gratuity is determined after completion of qualifying service of ten years. Therefore, for grant of any kind of pension one has to put in the minimum of ten years of qualifying service. The respondent in the present case, does not have the minimum qualifying service. Therefore, the authorities declined to grant him the invalid pension. But the amount of gratuity has been determined and the same was paid to him. . . . . . . .. . . . . . . . . . . . .23. The above enunciation of the law on requirement of qualifying service for invalid pension by the bench of two judges is reiterated and approved by us24. In a case like this, the need for compassion and the compliance of the norms has to be balanced. As earlier noted, the allowable gratuity benefits were granted on account of the respondents husband and after he died, the widow was appointed (on 12.6.2006) in a government job under the Rehabilitation Assistance Scheme. Thus, the needed means of sustenance was provided to the deceaseds family25. The respondents husband had not served for ten years and was therefore, he disentitled for regular pension. For the same reason, he cannot also be held entitled to invalid pension. The different provisions of the Pension Rules cannot be read in isolation and must be construed harmoniously and the requirement of qualifying service cannot be said to be irrelevant for claiming different service benefits under the same Rules. Here the employee did not satisfy the requirement of qualifying service and therefore the invalid pension could not have been ordered for him, under Rule 39 of the Pension Rules26. In the above context, it will bear emphasis that the respondent never prayed for invalid pension for her husband in her O.A. and yet the Tribunal as well as the High Court granted her the unclaimed relief. Such additional munificence, in addition to the job provided to the first respondent under the Rehabilitation Assistance Scheme for the sustenance of the deceaseds family, in our view, was unwarranted and the impugned order cannot be sustained. | 1 | 3,584 | 1,269 | ### 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:
qualifying service prescribed in the Pension Rules must be satisfied to become eligible for invalid pension and the arguments made to the contrary that invalid pension can be claimed under Rule 39 without satisfying the stipulated qualifying service mentioned in the same Rules, do not appeal to us. The respondents husband who had served for lesser years then the 10 years qualifying service, was found entitled by his employers to service gratuity only, because of his premature retirement on the ground of mental incapacitation and this is what is prescribed by the Pension Rules. The dues toward service gratuity was paid accordingly. The Pension Rules definitely envisaged that there could be a situation where an employee may not be eligible for pension benefits for not satisfying the prescribed qualifying service of 10 years. For those with less than 10 years service, the Pension Rules provide for gratuity payment and therefore, it is difficult for us to conclude that for invalid pension, qualifying years of service, can be ignored. 22. The above view of ours is supported by the ratio in Union of India and Another Vs. Bashirbhai R. Khiliji (2007) 6 SCC 16 , where this Court was considering claim for invalid pension for an armed constable in the CRPF who suffered from pyrogenic meningitis and neurosensory deafness (bilateral). In that case, the CRPF personnel was declared unfit for active duty, and he was invalidated from service. He applied to authorities for invalid pension but that was rejected on the ground that he had not completed the qualifying service of 10 years. Instead, he was paid service gratuity. The High Court in that case however, took the view that since the CRPF Constables invalidity was 100 per cent, he was entitled to invalid pension and the stipulation of 10 years of qualifying service could not be invoked to deny him the invalid pension. However, Justice A.K. Mathur, speaking for a two judge Bench of this Court while interpreting similar provisions in the applicable Rules, negated the High Courts view and pronounced on the issue of qualifying service for invalid pension, in the following manner:- . . . . . . . . . . . . . . . . . . . . . . 9. We are presently concerned with two provisions of the Rules i.e., Rule 38 and 49. Rule 38, as reproduced above, contemplates the invalid pension. The procedure has been mentioned therein i.e. in case an incumbent retires from service on account of bodily or mental infirmity which permanently incapacitated him for the service, then a medical certificate of incapacity shall be given by the authorities concerned and in particular Form 23 the same may be applied before the competent authority. It is true that the qualifying service is not mentioned in Rule 38 but Rule 49 which deals with the amount of pension stipulates that a government servant retiring in accordance with the provisions of these Rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half months emoluments for every completed six-monthly period of qualifying service. Therefore, the minimum qualifying service of ten years is mentioned in Rule 49. The word qualifying service has been defined in Rule 3(1)(q) of the Rules which read as under: 3. (1)(q) qualifying service means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these Rules;10. Therefore, the minimum qualifying service which is required for the pension as mentioned in Rule 49, is ten years. The qualifying service has been explained in various memos issued by the Government of India from time to time. But Rule 49 read with Rule 38 makes it clear that qualifying service of pension is ten years and therefore, gratuity is determined after completion of qualifying service of ten years. Therefore, for grant of any kind of pension one has to put in the minimum of ten years of qualifying service. The respondent in the present case, does not have the minimum qualifying service. Therefore, the authorities declined to grant him the invalid pension. But the amount of gratuity has been determined and the same was paid to him. . . . . . . . .. . . . . . . . . . . . . . (Underlining added) 23. The above enunciation of the law on requirement of qualifying service for invalid pension by the bench of two judges is reiterated and approved by us. 24. In a case like this, the need for compassion and the compliance of the norms has to be balanced. As earlier noted, the allowable gratuity benefits were granted on account of the respondents husband and after he died, the widow was appointed (on 12.6.2006) in a government job under the Rehabilitation Assistance Scheme. Thus, the needed means of sustenance was provided to the deceaseds family. 25. The respondents husband had not served for ten years and was therefore, he disentitled for regular pension. For the same reason, he cannot also be held entitled to invalid pension. The different provisions of the Pension Rules cannot be read in isolation and must be construed harmoniously and the requirement of qualifying service cannot be said to be irrelevant for claiming different service benefits under the same Rules. Here the employee did not satisfy the requirement of qualifying service and therefore the invalid pension could not have been ordered for him, under Rule 39 of the Pension Rules. 26. In the above context, it will bear emphasis that the respondent never prayed for invalid pension for her husband in her O.A. and yet the Tribunal as well as the High Court granted her the unclaimed relief. Such additional munificence, in addition to the job provided to the first respondent under the Rehabilitation Assistance Scheme for the sustenance of the deceaseds family, in our view, was unwarranted and the impugned order cannot be sustained.
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1
### Explanation:
considered under the very same Pension Rules21. The condition of qualifying service prescribed in the Pension Rules must be satisfied to become eligible for invalid pension and the arguments made to the contrary that invalid pension can be claimed under Rule 39 without satisfying the stipulated qualifying service mentioned in the same Rules, do not appeal to us. The respondents husband who had served for lesser years then the 10 years qualifying service, was found entitled by his employers to service gratuity only, because of his premature retirement on the ground of mental incapacitation and this is what is prescribed by the Pension Rules. The dues toward service gratuity was paid accordingly. The Pension Rules definitely envisaged that there could be a situation where an employee may not be eligible for pension benefits for not satisfying the prescribed qualifying service of 10 years. For those with less than 10 years service, the Pension Rules provide for gratuity payment and therefore, it is difficult for us to conclude that for invalid pension, qualifying years of service, can be ignored22. The above view of ours is supported by the ratio in Union of India and Another Vs. Bashirbhai R. Khiliji (2007) 6 SCC 16 , where this Court was considering claim for invalid pension for an armed constable in the CRPF who suffered from pyrogenic meningitis and neurosensory deafness (bilateral). In that case, the CRPF personnel was declared unfit for active duty, and he was invalidated from service. He applied to authorities for invalid pension but that was rejected on the ground that he had not completed the qualifying service of 10 years. Instead, he was paid service gratuity. The High Court in that case however, took the view that since the CRPF Constables invalidity was 100 per cent, he was entitled to invalid pension and the stipulation of 10 years of qualifying service could not be invoked to deny him the invalid pension. However, Justice A.K. Mathur, speaking for a two judge Bench of this Court while interpreting similar provisions in the applicable Rules, negated the High Courts view and pronounced on the issue of qualifying service for invalid pension, in the following manner:-. . . . . . . . . . . . . . . . . . . . .9. We are presently concerned with two provisions of the Rules i.e., Rule 38 and 49. Rule 38, as reproduced above, contemplates the invalid pension. The procedure has been mentioned therein i.e. in case an incumbent retires from service on account of bodily or mental infirmity which permanently incapacitated him for the service, then a medical certificate of incapacity shall be given by the authorities concerned and in particular Form 23 the same may be applied before the competent authority. It is true that the qualifying service is not mentioned in Rule 38 but Rule 49 which deals with the amount of pension stipulates that a government servant retiring in accordance with the provisions of these Rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half months emoluments for every completed six-monthly period of qualifying service. Therefore, the minimum qualifying service of ten years is mentioned in Rule 49. The word qualifying service has been defined in Rule 3(1)(q) of the Rules which read as under:3. (1)(q) qualifying service means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these Rules;10. Therefore, the minimum qualifying service which is required for the pension as mentioned in Rule 49, is ten years. The qualifying service has been explained in various memos issued by the Government of India from time to time. But Rule 49 read with Rule 38 makes it clear that qualifying service of pension is ten years and therefore, gratuity is determined after completion of qualifying service of ten years. Therefore, for grant of any kind of pension one has to put in the minimum of ten years of qualifying service. The respondent in the present case, does not have the minimum qualifying service. Therefore, the authorities declined to grant him the invalid pension. But the amount of gratuity has been determined and the same was paid to him. . . . . . . .. . . . . . . . . . . . .23. The above enunciation of the law on requirement of qualifying service for invalid pension by the bench of two judges is reiterated and approved by us24. In a case like this, the need for compassion and the compliance of the norms has to be balanced. As earlier noted, the allowable gratuity benefits were granted on account of the respondents husband and after he died, the widow was appointed (on 12.6.2006) in a government job under the Rehabilitation Assistance Scheme. Thus, the needed means of sustenance was provided to the deceaseds family25. The respondents husband had not served for ten years and was therefore, he disentitled for regular pension. For the same reason, he cannot also be held entitled to invalid pension. The different provisions of the Pension Rules cannot be read in isolation and must be construed harmoniously and the requirement of qualifying service cannot be said to be irrelevant for claiming different service benefits under the same Rules. Here the employee did not satisfy the requirement of qualifying service and therefore the invalid pension could not have been ordered for him, under Rule 39 of the Pension Rules26. In the above context, it will bear emphasis that the respondent never prayed for invalid pension for her husband in her O.A. and yet the Tribunal as well as the High Court granted her the unclaimed relief. Such additional munificence, in addition to the job provided to the first respondent under the Rehabilitation Assistance Scheme for the sustenance of the deceaseds family, in our view, was unwarranted and the impugned order cannot be sustained.
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Bombay Environmental Action Group Vs. State of Maharashtra | review in a matter and project of the instant nature. He contended that the Courts jurisdiction under Article 226 of the Constitution was not unlimited. If the Court found that the concerned Government authorities, both at the Centre and State level, have applied their minds to the relevant facts and circumstances and that there are no extraneous considerations weighing with the authorities, then, in the absence of mala fides or ulterior motive, it was not open to the Court to revoke the executive and / or administrative decisions merely and only because another view of the matter may also perhaps be a possible view. He contended that all the objections were duly considered. Indeed, the matter was even reconsidered in the light of subsequent representations. He emphasised that there was no allegation of any ulterior motive or any mala fides. In a matter such as this involving diverse pros and cons, technical and otherwise, the Courts should be extremely slow to interfere unless inevitable.15. Mr. Andhyarujina invited our attention to the Supreme Court ruling in Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, AIR 1987 Supreme Court 359 and in particular to the following observations at page 363 :--"It is for the Government and the Nation and not for the Court to decide whether the deposits should be exploited at the cost of ecology and environmental considerations or the industrial requirement should be otherwise satisfied. It may be perhaps possible to exercise greater control and vigil over the operation and strike a balance between preservation and utilisation. That would indeed be a matter for an expert body to examine and on the basis of appropriate advice, Government should take a policy decision and firmly implement the same."Reference was also made to yet another Supreme Court ruling viz. Shri Sachidanand Pandey v. State of West Bengal, AIR 1987 Supreme Court 1109 and in particular to the following observations therein :"The question raised in the present case is whether the Government of West Bengal has shown such lack of awareness of the problem of environment in making an allotment of land for the construction of a Five Star Hotel at the expense of the zoological garden that it warrants interference by this Court. Obviously, if the Government is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account, it may not be for this Court to interfere in the absence of mala fides."16. The, petitioners, as public spirited organisations and citizens, have, through their respective Counsel, done their duty by invoking this Courts writ jurisdiction and placing before us all such facts and circumstances as considered best by them. We in our turn, have done our duty by carefully examining all the facts and circumstances in the context of the rival contentions advanced before us on either side. In the course of this elaborate exercise and at every stage of the judicial process, we have kept asking ourselves the question -- Have the authorities shown such lack of awareness or have they been so oblivious of the needs of environment as to warrant Courts interference We do not think so. On the contrary, considerable though deliberation, consultation and application of mind by all concerned authorities and experts has gone into the decision making process. We find on the part of the authorities, and experts all the seriousness while considering and deciding upon the varied factors and circumstances including environment in relation to this project. The indepth analysis, the conditions imposed and the precautions taken inspire Courts confidence and, if, at the end of it all, the Court finds that a very conscious decision has been taken in the light of all possible pros and cons, it would then not interfere. The decision of the authorities cannot be said to be arbitrary or capricious or one not in good faith or actuated by improper motive or extraneous considerations.17. Environmental issues are relevant and deserve serious consideration. But the needs of the environment require to be balanced with the needs of the community at large and the needs of a developing country. If one finds, as in this case, that all possible environmental safe-guards have been taken, the check and control by way of judicial review should then come to an end. Once an elaborate and extensive exercise by all concerned including the invironmentalists, the State and the Central authorities and expert-bodies is undertaken and effected and its end result judicially considered and reviewed, the matter thereafter should in all fairness stand concluded. Endless arguments, endless reviews and endless litigation in a matter such as this, can carry one to no end and may as well turn counter productive. While public interest litigation is a welcome development, there are nevertheless limits beyond which it may as well cease to be in public interest any further.18. We hope the controvercy will at least now be set at rest and the erstwhile spirit of confrontation replaced by a spirit of cooperation in the larger interests of the community. Qua a project such as this, if steps are not taken well in time, this metropolis and its over twelve million inhabitants by now, will in the near future find themselves be set with serious energy crisis, perforce compelling this vast population to live without adequate power and energy which, in this age and times, has become basic for a minimum standard of life and living. It is, in our considered view, in nobodys interest to inordinately delay this project of immense benefit. As it is, it has stood delayed inter alia as a result of this litigation. Any further delay would result in speedily rising costs as also loss of valuable time. The cost escalation itself would run into crores every year.We may not be hoping against hope in expecting the environmentalists as good citizens to appreciate the over-all position and accept this as final curtain on this litigation by way of this judgment. | 0[ds]6. On the first contention supra, we find that the Ministry of Environment and Forest has carefully applied its mind to the relevant guidelines and there was nothing in the memorandum dated 29th March 1989 to suggest that the clearance from environmental angle was in violation of these guidelines. Moreover, this is not a case of any blanket or arbitrary permission de hors any terms or conditions. In fact, as many as fifteen stringent conditions have been imposed. Several expert authorities, both of the State and the Central Governments, have also applied their minds to the relevant factors including the factor of preservation of ecological balance. The following authorities have given their approval to the project from the environmental angle :Government of Maharashtra;State Appraisal Committee;c) Government of India, Ministry of Environment and Forest;d) Maharashtra Pollution Control Board;e) Government of India, Ministry of Water Resources, Central Water and Power Research Station;f) Indian Institute of Tropical Meterology;g) World Bank Environmental Review AideThe company had appointed Tata Consulting Engineers to investigate and find suitable sites, carry outstudies and prepare a feasibility report. About nine sites were investigated; eight of these had to be discarded ongrounds such as nearness to habitation, use of scarce irrigation water resource for agricultural use, large township nearby, drastically curtailing irrigated lands and land; used for agricultural cultivation, transmission lines traversing through forest area involving deforestation. Out of nine sites, only Bassein site was found to be viable but this also had to be given up as it fell within the BMRDA area. Ultimately Dahanu site was approved both by the Central and State Governments stipulating several stringent term and conditions. Why Dahanu was approved is also clearly set out in the affidavit of both Pinge and Ziradkar. We also have the very detail chart prepared by the company dealing with and giving point by point reply to the report of the appraisal committee. We also have the exhaustive office memorandum of 26th June 1990. Experts in the field have also taken relevant factors into consideration before approving the present site. We have gone though the entire material placed before us. Considering the same, we are unable to take a contrary view of the matter. In our opinion, the decision consciously reached and taken by the experts as also the State and to Central Government is well justified and does not warrant interference. The first contention thus fails and is rejected.Apart from the above, we also have the notification dated 27th July 1990 issued by the Ministry of Environment and Forests in the exercise of powers conferred by(1), read with clause (v) of(2) of Section 3 of the Environment (Protection) Act, 1986 (Act No. 29 of 1986). Under the said notification, there are certain prohibited activities as against permissible activities within the Coastal Regulation zone. Under para 3(2)(iii) thereof, thermal power plant is permissible but subject to the clearance from the Ministry of Environment and Forests, Government of India. The State Government as well as the company have confirmed that 500 meters distance from high tide level will be maintained. The State Government has further informed the Central Government that it has issued instructions to the company that it should strictly follow guideline regarding prohibition for locating structures within 500 meters of high tide line either on the creek side or on the beach side. In order to avoid all controversy, the company agreed to shift the location of the power station so as to keep 500 meters distance from all sides. The plan and the map in this behalf was also shown to us and we have no reason to doubt that the company will not act accordingly. With the increasing economic activity coupled with increasing demand for fresh water for domestic, industry and irrigation purposes, there is considerable strain on fresh water resources. It has, therefore, become necessary to locate thermal power plant in coastal area where sea water can be utilised for cooling purposes. The requirement of maintaining distance of 500 meters from high tide line is, however, ensured. We are satisfied that the two Central Government memoranda viz., one of March 1989 and the other of June 1990 and the conditions imposed ensure compliance with the requisite precautions. This contentions also, therefore, fails and isNo. (vi) in the office memorandum dated 29th March 1989 of the Central Government is as under :"The temperature of the water coming out of the condenser should not exceed 50C at the point of discharge."Going through and considering the affidavit of Pinge, we are satisfied that elaborate arrangements would be made for cooling the water that is discharged into the creek. The opinion of the expert body viz.; the Khadakvasla Research Station, vide its letter dated 21st May 1990 shows thus :"As regards the dispersion of the hot water in the creek, mathematical model studies carried out and given in our interim report show that with the assumption made, and with the temperature of 5 degree C above ambient at the proposed outfall point, the temperatures at all points downstream of the outfall (towards the intake) would drop to less than 3 degree C outside the mixing zone under all tidal conditions and stages."The respondents rightly placed reliance also on the letter dated 8th November 1988 issued by the Indian Institute of Tropical Metereology. Moreover, we have, in addition, the office memorandum dated 26th June 1990 which on this aspectlarger availability of power by setting up this plant will result in availability of power for running the irrigation pumps, etc. in the region which in turn will help greater agricultural and horticulture productivity. This will improve the potential for resource generation for the people of the area, instead of adversely affecting as predicted by the petitioners."In all the circumstances, we find the petitioners apprehension more imaginary than real. This contention also thus fails.13. We also find no merit in the contention relating to a possible breach of the assurance on no industrial development in Dahanu Zone. The letter dated 24th September 1988 by the Environment Department of the State Government to the Director of Industries, Government of Maharashtra, ensures in para 3 thereof as underYou are, therefore,Not to sponsor any organised industrial estates or even private industrial estate in Dahanu Taluka in order to keep cultural heritage of the area and also maintain horticulture status of the area.ii) Not to allow to come up small scale industries and middle scale industries of hazardous types which are likely to cause water, air or soil pollution."Reference may also be made to conditions Nos. (x), (xii) and (xv) in the Central Governments memorandum dated 29th March 1989 which read as under :"(x) In order to prevent any deleterious effect in future the State Government has agreed that chemical or other polluting industries will not be allowed to come up in Dahanu Taluka. Having regard to the cultural heritage and horticultural status of the area and for protection of the system, the State Government has agreed not to sponsor any organised industrial estate or encourage private industries in Dahanu Taluka. Necessary orders in this regard will be issued by the State Government and communicated to this Department.(xii) A green belt of adequate density and width must be created all around the proposed plant.(xv) No further expansion of the plant at the site will be permitted."We see no good reason to entertain any doubt that these assurances will not be adhered to. It will also not be fair to start with suspicion and doubt about the future. We feel confident that the assurances given and the conditions imposed will be duly adhered to.The, petitioners, as public spirited organisations and citizens, have, through their respective Counsel, done their duty by invoking this Courts writ jurisdiction and placing before us all such facts and circumstances as considered best by them. We in our turn, have done our duty by carefully examining all the facts and circumstances in the context of the rival contentions advanced before us on either side. In the course of this elaborate exercise and at every stage of the judicial process, we have kept asking ourselves thethe authorities shown such lack of awareness or have they been so oblivious of the needs of environment as to warrant Courts interference We do not think so. On the contrary, considerable though deliberation, consultation and application of mind by all concerned authorities and experts has gone into the decision making process. We find on the part of the authorities, and experts all the seriousness while considering and deciding upon the varied factors and circumstances including environment in relation to this project. The indepth analysis, the conditions imposed and the precautions taken inspire Courts confidence and, if, at the end of it all, the Court finds that a very conscious decision has been taken in the light of all possible pros and cons, it would then not interfere. The decision of the authorities cannot be said to be arbitrary or capricious or one not in good faith or actuated by improper motive or extraneous considerations.17. Environmental issues are relevant and deserve serious consideration. But the needs of the environment require to be balanced with the needs of the community at large and the needs of a developing country. If one finds, as in this case, that all possible environmentalhave been taken, the check and control by way of judicial review should then come to an end. Once an elaborate and extensive exercise by all concerned including the invironmentalists, the State and the Central authorities andis undertaken and effected and its end result judicially considered and reviewed, the matter thereafter should in all fairness stand concluded. Endless arguments, endless reviews and endless litigation in a matter such as this, can carry one to no end and may as well turn counter productive. While public interest litigation is a welcome development, there are nevertheless limits beyond which it may as well cease to be in public interest any further.18. We hope the controvercy will at least now be set at rest and the erstwhile spirit of confrontation replaced by a spirit of cooperation in the larger interests of the community. Qua a project such as this, if steps are not taken well in time, this metropolis and its over twelve million inhabitants by now, will in the near future find themselves be set with serious energy crisis, perforce compelling this vast population to live without adequate power and energy which, in this age and times, has become basic for a minimum standard of life and living. It is, in our considered view, in nobodys interest to inordinately delay this project of immense benefit. As it is, it has stood delayed inter alia as a result of this litigation. Any further delay would result in speedily rising costs as also loss of valuable time. The cost escalation itself would run into crores every year.We may not be hoping against hope in expecting the environmentalists as good citizens to appreciate theposition and accept this as final curtain on this litigation by way of this judgment. | 0 | 4,213 | 2,073 | ### Instruction:
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review in a matter and project of the instant nature. He contended that the Courts jurisdiction under Article 226 of the Constitution was not unlimited. If the Court found that the concerned Government authorities, both at the Centre and State level, have applied their minds to the relevant facts and circumstances and that there are no extraneous considerations weighing with the authorities, then, in the absence of mala fides or ulterior motive, it was not open to the Court to revoke the executive and / or administrative decisions merely and only because another view of the matter may also perhaps be a possible view. He contended that all the objections were duly considered. Indeed, the matter was even reconsidered in the light of subsequent representations. He emphasised that there was no allegation of any ulterior motive or any mala fides. In a matter such as this involving diverse pros and cons, technical and otherwise, the Courts should be extremely slow to interfere unless inevitable.15. Mr. Andhyarujina invited our attention to the Supreme Court ruling in Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, AIR 1987 Supreme Court 359 and in particular to the following observations at page 363 :--"It is for the Government and the Nation and not for the Court to decide whether the deposits should be exploited at the cost of ecology and environmental considerations or the industrial requirement should be otherwise satisfied. It may be perhaps possible to exercise greater control and vigil over the operation and strike a balance between preservation and utilisation. That would indeed be a matter for an expert body to examine and on the basis of appropriate advice, Government should take a policy decision and firmly implement the same."Reference was also made to yet another Supreme Court ruling viz. Shri Sachidanand Pandey v. State of West Bengal, AIR 1987 Supreme Court 1109 and in particular to the following observations therein :"The question raised in the present case is whether the Government of West Bengal has shown such lack of awareness of the problem of environment in making an allotment of land for the construction of a Five Star Hotel at the expense of the zoological garden that it warrants interference by this Court. Obviously, if the Government is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account, it may not be for this Court to interfere in the absence of mala fides."16. The, petitioners, as public spirited organisations and citizens, have, through their respective Counsel, done their duty by invoking this Courts writ jurisdiction and placing before us all such facts and circumstances as considered best by them. We in our turn, have done our duty by carefully examining all the facts and circumstances in the context of the rival contentions advanced before us on either side. In the course of this elaborate exercise and at every stage of the judicial process, we have kept asking ourselves the question -- Have the authorities shown such lack of awareness or have they been so oblivious of the needs of environment as to warrant Courts interference We do not think so. On the contrary, considerable though deliberation, consultation and application of mind by all concerned authorities and experts has gone into the decision making process. We find on the part of the authorities, and experts all the seriousness while considering and deciding upon the varied factors and circumstances including environment in relation to this project. The indepth analysis, the conditions imposed and the precautions taken inspire Courts confidence and, if, at the end of it all, the Court finds that a very conscious decision has been taken in the light of all possible pros and cons, it would then not interfere. The decision of the authorities cannot be said to be arbitrary or capricious or one not in good faith or actuated by improper motive or extraneous considerations.17. Environmental issues are relevant and deserve serious consideration. But the needs of the environment require to be balanced with the needs of the community at large and the needs of a developing country. If one finds, as in this case, that all possible environmental safe-guards have been taken, the check and control by way of judicial review should then come to an end. Once an elaborate and extensive exercise by all concerned including the invironmentalists, the State and the Central authorities and expert-bodies is undertaken and effected and its end result judicially considered and reviewed, the matter thereafter should in all fairness stand concluded. Endless arguments, endless reviews and endless litigation in a matter such as this, can carry one to no end and may as well turn counter productive. While public interest litigation is a welcome development, there are nevertheless limits beyond which it may as well cease to be in public interest any further.18. We hope the controvercy will at least now be set at rest and the erstwhile spirit of confrontation replaced by a spirit of cooperation in the larger interests of the community. Qua a project such as this, if steps are not taken well in time, this metropolis and its over twelve million inhabitants by now, will in the near future find themselves be set with serious energy crisis, perforce compelling this vast population to live without adequate power and energy which, in this age and times, has become basic for a minimum standard of life and living. It is, in our considered view, in nobodys interest to inordinately delay this project of immense benefit. As it is, it has stood delayed inter alia as a result of this litigation. Any further delay would result in speedily rising costs as also loss of valuable time. The cost escalation itself would run into crores every year.We may not be hoping against hope in expecting the environmentalists as good citizens to appreciate the over-all position and accept this as final curtain on this litigation by way of this judgment.
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(towards the intake) would drop to less than 3 degree C outside the mixing zone under all tidal conditions and stages."The respondents rightly placed reliance also on the letter dated 8th November 1988 issued by the Indian Institute of Tropical Metereology. Moreover, we have, in addition, the office memorandum dated 26th June 1990 which on this aspectlarger availability of power by setting up this plant will result in availability of power for running the irrigation pumps, etc. in the region which in turn will help greater agricultural and horticulture productivity. This will improve the potential for resource generation for the people of the area, instead of adversely affecting as predicted by the petitioners."In all the circumstances, we find the petitioners apprehension more imaginary than real. This contention also thus fails.13. We also find no merit in the contention relating to a possible breach of the assurance on no industrial development in Dahanu Zone. The letter dated 24th September 1988 by the Environment Department of the State Government to the Director of Industries, Government of Maharashtra, ensures in para 3 thereof as underYou are, therefore,Not to sponsor any organised industrial estates or even private industrial estate in Dahanu Taluka in order to keep cultural heritage of the area and also maintain horticulture status of the area.ii) Not to allow to come up small scale industries and middle scale industries of hazardous types which are likely to cause water, air or soil pollution."Reference may also be made to conditions Nos. (x), (xii) and (xv) in the Central Governments memorandum dated 29th March 1989 which read as under :"(x) In order to prevent any deleterious effect in future the State Government has agreed that chemical or other polluting industries will not be allowed to come up in Dahanu Taluka. Having regard to the cultural heritage and horticultural status of the area and for protection of the system, the State Government has agreed not to sponsor any organised industrial estate or encourage private industries in Dahanu Taluka. Necessary orders in this regard will be issued by the State Government and communicated to this Department.(xii) A green belt of adequate density and width must be created all around the proposed plant.(xv) No further expansion of the plant at the site will be permitted."We see no good reason to entertain any doubt that these assurances will not be adhered to. It will also not be fair to start with suspicion and doubt about the future. We feel confident that the assurances given and the conditions imposed will be duly adhered to.The, petitioners, as public spirited organisations and citizens, have, through their respective Counsel, done their duty by invoking this Courts writ jurisdiction and placing before us all such facts and circumstances as considered best by them. We in our turn, have done our duty by carefully examining all the facts and circumstances in the context of the rival contentions advanced before us on either side. In the course of this elaborate exercise and at every stage of the judicial process, we have kept asking ourselves thethe authorities shown such lack of awareness or have they been so oblivious of the needs of environment as to warrant Courts interference We do not think so. On the contrary, considerable though deliberation, consultation and application of mind by all concerned authorities and experts has gone into the decision making process. We find on the part of the authorities, and experts all the seriousness while considering and deciding upon the varied factors and circumstances including environment in relation to this project. The indepth analysis, the conditions imposed and the precautions taken inspire Courts confidence and, if, at the end of it all, the Court finds that a very conscious decision has been taken in the light of all possible pros and cons, it would then not interfere. The decision of the authorities cannot be said to be arbitrary or capricious or one not in good faith or actuated by improper motive or extraneous considerations.17. Environmental issues are relevant and deserve serious consideration. But the needs of the environment require to be balanced with the needs of the community at large and the needs of a developing country. If one finds, as in this case, that all possible environmentalhave been taken, the check and control by way of judicial review should then come to an end. Once an elaborate and extensive exercise by all concerned including the invironmentalists, the State and the Central authorities andis undertaken and effected and its end result judicially considered and reviewed, the matter thereafter should in all fairness stand concluded. Endless arguments, endless reviews and endless litigation in a matter such as this, can carry one to no end and may as well turn counter productive. While public interest litigation is a welcome development, there are nevertheless limits beyond which it may as well cease to be in public interest any further.18. We hope the controvercy will at least now be set at rest and the erstwhile spirit of confrontation replaced by a spirit of cooperation in the larger interests of the community. Qua a project such as this, if steps are not taken well in time, this metropolis and its over twelve million inhabitants by now, will in the near future find themselves be set with serious energy crisis, perforce compelling this vast population to live without adequate power and energy which, in this age and times, has become basic for a minimum standard of life and living. It is, in our considered view, in nobodys interest to inordinately delay this project of immense benefit. As it is, it has stood delayed inter alia as a result of this litigation. Any further delay would result in speedily rising costs as also loss of valuable time. The cost escalation itself would run into crores every year.We may not be hoping against hope in expecting the environmentalists as good citizens to appreciate theposition and accept this as final curtain on this litigation by way of this judgment.
|
Indian Bank and another Vs. Mahaveer Khariwal | hereinbelow. It also appears that as per Sub-Regulation (2) of Regulation 29, the notice of voluntary retirement given under Sub-Regulation (1) shall require acceptance by the appointing authority. However, as per the proviso to Sub-regulation (2), the appointing authority has to take a decision before the expiry of the period specified in the notice. It provides that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, there shall be deemed acceptance of the voluntary retirement application and the retirement shall become effective from the date of expiry of the period mentioned in the notice. However, at the same time, as per Sub-Regulation 3(a), an employee may make a request in writing to the appointing authority for waiver of the three months notice and may make a request to accept the notice of voluntary retirement of less than three months giving reasons thereof. Sub-Regulation 3(b) provides that on receipt of a request for waiver of three months notice as per Sub-Regulation 3(a), the appointing authority may, subject to the provisions of Sub- Regulation (2), consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for commutation of a part of the pension before the expiry of the notice of three months. In the present case, the application of the employee submitting the voluntary retirement application with a request for curtailment of notice of three months was absolutely in consonance with Regulation 29. The request made by the employee for curtailment of the period of notice of three months was required to be considered by the appointing authority on merits and only in a case where it is found that the curtailment of the period of notice may cause any administrative inconvenience, the request for curtailment of the period of three months notice can be rejected. On considering the communication dated 20.04.2004 rejecting the application of the employee for voluntary retirement, it does not reflect any compliance of Sub-Regulation 3(b) of Regulation 29. As such, no reasons whatsoever have been assigned/given except stating that the request is not in accordance with Pension Regulations, 1995. Even otherwise, it is required to be noted that even the communication dated 20.04.2004 was on the last day of the third month, i.e., 90th day from the date of submitting the voluntary retirement application. Therefore, there was no reason to reject the prayer of curtailment of the period of notice considering the grounds mention in Sub- Regulation 3(b) of Regulation 29. Be that as it may, the rejection of the application for voluntary retirement was not on the ground that notice of three months is not given. The request made by the employee for curtailment of notice of three months was also not considered on merits. Therefore, as rightly held by the Division Bench of the High Court, the application for voluntary retirement was absolutely in consonance with Regulation 29 and that the rejection was bad in law and contrary to Regulation 29. The Division Bench of the High Court is absolutely justified in quashing and setting aside the communication dated 20.04.2004. We are in complete agreement with the view taken by the Division Bench. 11. Now so far as the submission on behalf of the employer that the employee was not eligible for voluntary retirement in view of proviso to Sub-Regulation (1) of Regulation 29 as after he returned to India from Colombo Branch he did not serve for a period of not less than one year is concerned, there is a specific finding given by the Division Bench that the said proviso shall not be applicable to the facts of the case on hand as in the present case the employee was on transfer to Colombo Branch and was not on deputation. If we look at order dated 19.03.1998, it cannot be said that the employee was sent on deputation as Chief Manager, Colombo Branch. It says that he is posted as Chief Manager, Colombo Branch. Even when he was relieved from Colombo Branch to join at Defence Colony Branch, New Delhi, in the communication dated 25.08.2003 (Annexure P5), it speaks about the transfer order dated 13.05.2003. It is not the order of repatriation. Therefore, proviso to Sub-Regulation (1) to Regulation 29 shall not be applicable. 12. Now so far as the submission on behalf of the employer that the acceptance or non-acceptance of the voluntary retirement application is required to be taken before the expiry of the period specified in the notice, i.e., in the present case three months and the same was taken on the last date of the three months period and date of receipt of the decision/communication is not material, it is true that in the present case the decision was taken before the expiry of the period specified in the notice, i.e., on or before three months (last day of the third month), however, as observed hereinabove, the rejection of the application for voluntary retirement itself is found to be illegal and bad in law. Therefore, the aforesaid shall not affect the ultimate conclusion reached by the Division Bench of the High Court. As observed hereinabove, communication dated 20.04.2004 rejecting the voluntary retirement application was bad in law and contrary to Regulation 29. Therefore, the employee shall be entitled to all retiral benefits on the basis of his voluntary retirement. Once, it is held that he is voluntary retired as per his application dated 21.01.2004 and the rejection of the application of voluntary retirement is held to be bad in law, all other subsequent proceedings of departmental enquiry will be null and void and shall be non est, as after the voluntary retirement, there shall not be an employer-employee relationship. | 0[ds]8. We have heard the learned counsel for the respective parties at length.It is not in dispute that in the present case the employee submitted the voluntary retirement application on 21.01.2004. In the application itself, the employee requested for waiver of three months notice and requested to deduct the salary amount of the notice period from out of the amounts payable to him by the employer on retirement. It is not in dispute and it cannot be disputed that the notice of voluntary retirement requires acceptance by the appointing authority. However, as per proviso to Sub-Regulation 2 of Regulation 29, in case the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, the retirement shall become effective from the date of expiry of the said notice period. In the present case, on the 90th day vide communication dated 20.04.2004 the application of the employee for voluntary retirement was rejected without assigning any specific reasons and by observing that the employee is not eligible for voluntary retirement under Pension Regulations, 1995. The said communication was sent to the employee on the very date, i.e., 20.04.2004, however the same was received by the employee on 23.04.2004. The learned Single Judge dismissed the writ petition so far as challenge to the communication dated 20.04.2004 is concerned. However, on appeal, by the impugned judgment and order, the Division Bench has set aside the communication dated 20.04.2004 by which the request of the employee for voluntary retirement from the service of the employer came to be rejected.10. On a fair reading of Regulation 29, it emerges that an employee is entitled to apply for voluntary retirement after he has completed 20 years of qualifying service. He can apply for voluntary retirement by giving notice of not less than three months in writing to the appointing authority (Regulation 29(1)). However, as per proviso to Sub-Regulation (1) of Regulation 29, Sub-Regulation (1) of Regulation 29 shall not apply to an employee who is on deputation or on study leave on abroad unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year. The said proviso shall be dealt with and considered hereinbelow. It also appears that as per Sub-Regulation (2) of Regulation 29, the notice of voluntary retirement given under Sub-Regulation (1) shall require acceptance by the appointing authority. However, as per the proviso to Sub-regulation (2), the appointing authority has to take a decision before the expiry of the period specified in the notice. It provides that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, there shall be deemed acceptance of the voluntary retirement application and the retirement shall become effective from the date of expiry of the period mentioned in the notice. However, at the same time, as per Sub-Regulation 3(a), an employee may make a request in writing to the appointing authority for waiver of the three months notice and may make a request to accept the notice of voluntary retirement of less than three months giving reasons thereof. Sub-Regulation 3(b) provides that on receipt of a request for waiver of three months notice as per Sub-Regulation 3(a), the appointing authority may, subject to the provisions of Sub- Regulation (2), consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for commutation of a part of the pension before the expiry of the notice of three months. In the present case, the application of the employee submitting the voluntary retirement application with a request for curtailment of notice of three months was absolutely in consonance with Regulation 29. The request made by the employee for curtailment of the period of notice of three months was required to be considered by the appointing authority on merits and only in a case where it is found that the curtailment of the period of notice may cause any administrative inconvenience, the request for curtailment of the period of three months notice can be rejected. On considering the communication dated 20.04.2004 rejecting the application of the employee for voluntary retirement, it does not reflect any compliance of Sub-Regulation 3(b) of Regulation 29. As such, no reasons whatsoever have been assigned/given except stating that the request is not in accordance with Pension Regulations, 1995. Even otherwise, it is required to be noted that even the communication dated 20.04.2004 was on the last day of the third month, i.e., 90th day from the date of submitting the voluntary retirement application. Therefore, there was no reason to reject the prayer of curtailment of the period of notice considering the grounds mention in Sub- Regulation 3(b) of Regulation 29. Be that as it may, the rejection of the application for voluntary retirement was not on the ground that notice of three months is not given. The request made by the employee for curtailment of notice of three months was also not considered on merits. Therefore, as rightly held by the Division Bench of the High Court, the application for voluntary retirement was absolutely in consonance with Regulation 29 and that the rejection was bad in law and contrary to Regulation 29. The Division Bench of the High Court is absolutely justified in quashing and setting aside the communication dated 20.04.2004. We are in complete agreement with the view taken by the Division Bench.11. Now so far as the submission on behalf of the employer that the employee was not eligible for voluntary retirement in view of proviso to Sub-Regulation (1) of Regulation 29 as after he returned to India from Colombo Branch he did not serve for a period of not less than one year is concerned, there is a specific finding given by the Division Bench that the said proviso shall not be applicable to the facts of the case on hand as in the present case the employee was on transfer to Colombo Branch and was not on deputation. If we look at order dated 19.03.1998, it cannot be said that the employee was sent on deputation as Chief Manager, Colombo Branch. It says that he is posted as Chief Manager, Colombo Branch. Even when he was relieved from Colombo Branch to join at Defence Colony Branch, New Delhi, in the communication dated 25.08.2003 (Annexure P5), it speaks about the transfer order dated 13.05.2003. It is not the order of repatriation. Therefore, proviso to Sub-Regulation (1) to Regulation 29 shall not be applicable.12. Now so far as the submission on behalf of the employer that the acceptance or non-acceptance of the voluntary retirement application is required to be taken before the expiry of the period specified in the notice, i.e., in the present case three months and the same was taken on the last date of the three months period and date of receipt of the decision/communication is not material, it is true that in the present case the decision was taken before the expiry of the period specified in the notice, i.e., on or before three months (last day of the third month), however, as observed hereinabove, the rejection of the application for voluntary retirement itself is found to be illegal and bad in law. Therefore, the aforesaid shall not affect the ultimate conclusion reached by the Division Bench of the High Court. As observed hereinabove, communication dated 20.04.2004 rejecting the voluntary retirement application was bad in law and contrary to Regulation 29. Therefore, the employee shall be entitled to all retiral benefits on the basis of his voluntary retirement. Once, it is held that he is voluntary retired as per his application dated 21.01.2004 and the rejection of the application of voluntary retirement is held to be bad in law, all other subsequent proceedings of departmental enquiry will be null and void and shall be non est, as after the voluntary retirement, there shall not be an employer-employee relationship. | 0 | 3,751 | 1,531 | ### Instruction:
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hereinbelow. It also appears that as per Sub-Regulation (2) of Regulation 29, the notice of voluntary retirement given under Sub-Regulation (1) shall require acceptance by the appointing authority. However, as per the proviso to Sub-regulation (2), the appointing authority has to take a decision before the expiry of the period specified in the notice. It provides that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, there shall be deemed acceptance of the voluntary retirement application and the retirement shall become effective from the date of expiry of the period mentioned in the notice. However, at the same time, as per Sub-Regulation 3(a), an employee may make a request in writing to the appointing authority for waiver of the three months notice and may make a request to accept the notice of voluntary retirement of less than three months giving reasons thereof. Sub-Regulation 3(b) provides that on receipt of a request for waiver of three months notice as per Sub-Regulation 3(a), the appointing authority may, subject to the provisions of Sub- Regulation (2), consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for commutation of a part of the pension before the expiry of the notice of three months. In the present case, the application of the employee submitting the voluntary retirement application with a request for curtailment of notice of three months was absolutely in consonance with Regulation 29. The request made by the employee for curtailment of the period of notice of three months was required to be considered by the appointing authority on merits and only in a case where it is found that the curtailment of the period of notice may cause any administrative inconvenience, the request for curtailment of the period of three months notice can be rejected. On considering the communication dated 20.04.2004 rejecting the application of the employee for voluntary retirement, it does not reflect any compliance of Sub-Regulation 3(b) of Regulation 29. As such, no reasons whatsoever have been assigned/given except stating that the request is not in accordance with Pension Regulations, 1995. Even otherwise, it is required to be noted that even the communication dated 20.04.2004 was on the last day of the third month, i.e., 90th day from the date of submitting the voluntary retirement application. Therefore, there was no reason to reject the prayer of curtailment of the period of notice considering the grounds mention in Sub- Regulation 3(b) of Regulation 29. Be that as it may, the rejection of the application for voluntary retirement was not on the ground that notice of three months is not given. The request made by the employee for curtailment of notice of three months was also not considered on merits. Therefore, as rightly held by the Division Bench of the High Court, the application for voluntary retirement was absolutely in consonance with Regulation 29 and that the rejection was bad in law and contrary to Regulation 29. The Division Bench of the High Court is absolutely justified in quashing and setting aside the communication dated 20.04.2004. We are in complete agreement with the view taken by the Division Bench. 11. Now so far as the submission on behalf of the employer that the employee was not eligible for voluntary retirement in view of proviso to Sub-Regulation (1) of Regulation 29 as after he returned to India from Colombo Branch he did not serve for a period of not less than one year is concerned, there is a specific finding given by the Division Bench that the said proviso shall not be applicable to the facts of the case on hand as in the present case the employee was on transfer to Colombo Branch and was not on deputation. If we look at order dated 19.03.1998, it cannot be said that the employee was sent on deputation as Chief Manager, Colombo Branch. It says that he is posted as Chief Manager, Colombo Branch. Even when he was relieved from Colombo Branch to join at Defence Colony Branch, New Delhi, in the communication dated 25.08.2003 (Annexure P5), it speaks about the transfer order dated 13.05.2003. It is not the order of repatriation. Therefore, proviso to Sub-Regulation (1) to Regulation 29 shall not be applicable. 12. Now so far as the submission on behalf of the employer that the acceptance or non-acceptance of the voluntary retirement application is required to be taken before the expiry of the period specified in the notice, i.e., in the present case three months and the same was taken on the last date of the three months period and date of receipt of the decision/communication is not material, it is true that in the present case the decision was taken before the expiry of the period specified in the notice, i.e., on or before three months (last day of the third month), however, as observed hereinabove, the rejection of the application for voluntary retirement itself is found to be illegal and bad in law. Therefore, the aforesaid shall not affect the ultimate conclusion reached by the Division Bench of the High Court. As observed hereinabove, communication dated 20.04.2004 rejecting the voluntary retirement application was bad in law and contrary to Regulation 29. Therefore, the employee shall be entitled to all retiral benefits on the basis of his voluntary retirement. Once, it is held that he is voluntary retired as per his application dated 21.01.2004 and the rejection of the application of voluntary retirement is held to be bad in law, all other subsequent proceedings of departmental enquiry will be null and void and shall be non est, as after the voluntary retirement, there shall not be an employer-employee relationship.
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### Explanation:
and considered hereinbelow. It also appears that as per Sub-Regulation (2) of Regulation 29, the notice of voluntary retirement given under Sub-Regulation (1) shall require acceptance by the appointing authority. However, as per the proviso to Sub-regulation (2), the appointing authority has to take a decision before the expiry of the period specified in the notice. It provides that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the notice, there shall be deemed acceptance of the voluntary retirement application and the retirement shall become effective from the date of expiry of the period mentioned in the notice. However, at the same time, as per Sub-Regulation 3(a), an employee may make a request in writing to the appointing authority for waiver of the three months notice and may make a request to accept the notice of voluntary retirement of less than three months giving reasons thereof. Sub-Regulation 3(b) provides that on receipt of a request for waiver of three months notice as per Sub-Regulation 3(a), the appointing authority may, subject to the provisions of Sub- Regulation (2), consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of three months on the condition that the employee shall not apply for commutation of a part of the pension before the expiry of the notice of three months. In the present case, the application of the employee submitting the voluntary retirement application with a request for curtailment of notice of three months was absolutely in consonance with Regulation 29. The request made by the employee for curtailment of the period of notice of three months was required to be considered by the appointing authority on merits and only in a case where it is found that the curtailment of the period of notice may cause any administrative inconvenience, the request for curtailment of the period of three months notice can be rejected. On considering the communication dated 20.04.2004 rejecting the application of the employee for voluntary retirement, it does not reflect any compliance of Sub-Regulation 3(b) of Regulation 29. As such, no reasons whatsoever have been assigned/given except stating that the request is not in accordance with Pension Regulations, 1995. Even otherwise, it is required to be noted that even the communication dated 20.04.2004 was on the last day of the third month, i.e., 90th day from the date of submitting the voluntary retirement application. Therefore, there was no reason to reject the prayer of curtailment of the period of notice considering the grounds mention in Sub- Regulation 3(b) of Regulation 29. Be that as it may, the rejection of the application for voluntary retirement was not on the ground that notice of three months is not given. The request made by the employee for curtailment of notice of three months was also not considered on merits. Therefore, as rightly held by the Division Bench of the High Court, the application for voluntary retirement was absolutely in consonance with Regulation 29 and that the rejection was bad in law and contrary to Regulation 29. The Division Bench of the High Court is absolutely justified in quashing and setting aside the communication dated 20.04.2004. We are in complete agreement with the view taken by the Division Bench.11. Now so far as the submission on behalf of the employer that the employee was not eligible for voluntary retirement in view of proviso to Sub-Regulation (1) of Regulation 29 as after he returned to India from Colombo Branch he did not serve for a period of not less than one year is concerned, there is a specific finding given by the Division Bench that the said proviso shall not be applicable to the facts of the case on hand as in the present case the employee was on transfer to Colombo Branch and was not on deputation. If we look at order dated 19.03.1998, it cannot be said that the employee was sent on deputation as Chief Manager, Colombo Branch. It says that he is posted as Chief Manager, Colombo Branch. Even when he was relieved from Colombo Branch to join at Defence Colony Branch, New Delhi, in the communication dated 25.08.2003 (Annexure P5), it speaks about the transfer order dated 13.05.2003. It is not the order of repatriation. Therefore, proviso to Sub-Regulation (1) to Regulation 29 shall not be applicable.12. Now so far as the submission on behalf of the employer that the acceptance or non-acceptance of the voluntary retirement application is required to be taken before the expiry of the period specified in the notice, i.e., in the present case three months and the same was taken on the last date of the three months period and date of receipt of the decision/communication is not material, it is true that in the present case the decision was taken before the expiry of the period specified in the notice, i.e., on or before three months (last day of the third month), however, as observed hereinabove, the rejection of the application for voluntary retirement itself is found to be illegal and bad in law. Therefore, the aforesaid shall not affect the ultimate conclusion reached by the Division Bench of the High Court. As observed hereinabove, communication dated 20.04.2004 rejecting the voluntary retirement application was bad in law and contrary to Regulation 29. Therefore, the employee shall be entitled to all retiral benefits on the basis of his voluntary retirement. Once, it is held that he is voluntary retired as per his application dated 21.01.2004 and the rejection of the application of voluntary retirement is held to be bad in law, all other subsequent proceedings of departmental enquiry will be null and void and shall be non est, as after the voluntary retirement, there shall not be an employer-employee relationship.
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K. Bhagirathi G. Shenoy Vs. K.P. Ballakuraya | agreed to by the lessor the additional potion is taken possession of by the lessee, and this Chalageni Chit is executed." 15. In the next paragraph of the lease deed it is stated that the property described thereunder in which the house wherein the lessee resides now, is included, together with the bath-room (which was constructed by the lessor) and the trees on the property, have been demised by the lessor to the lessee for a period starting from 1.7.1951 and ending with 30.6.1952. The other stipulations in the lease deed are the following : (1) The lessee is liable to pay the monthly rent of Rs. 9/- by the 10th day of every succeeding month. (2) If the rent falls in arrears it shall bear interest at the rate of 5 per cent per annum from the date of default. (3) All the improvements standing on the landed area would belong to the lessor. (4) The lessee has no right (a) to effect any kinds of improvement on the land, (b) to make any repairs to the building without the written consent of the lessor or to make any claim for the cost incurred for such repairs, (c) to cut any of the trees without any proper reasons, (d) to sub-lease or to alienate to any other person. 16. The description of the property is as follows: Â?37Â?3 Å The western portion of the property lying in survey R.S. No. 112/1, having an extent of 1.60 acres and the tiled residential building (in which lessee is residing) together with a bathroom (in which lessee is residing) together with a bathroom, 33 coconut trees (among which 21 are yielding), 7 jack trees, 7 mango trees, 50 cashew trees, 2 nellikai trees and 2 casuraina trees. It is made clear that the other pucca building situated on the land is not included in the lease. 17. Learned counsel contended that factors such as the nomenclature as "Chalageni" and that the lease is expansion of the original lease, are positive indications in favour of the lease being mainly one of land. Nomenclature does not matter in this case because even the previous deed of 1947 also contained the same appellation. Nor can the fact that it is expansion of the first lease be of any decisive impact, for that creature can be highlighted by both sides as a supporting factor to their respective stand. 18. One standard by which this document can be tested by discerning the predominant factor therein - building or land - can be this : Was it one lease for the building and the landed portion was added as appendage or incidental thereto ? Or was it one document for two separate demises i.e. one for building and the other for the land ? It is difficult to make out a third possibility that it would have been only one lease where the predominant factor was land, the building being of subsidiary importance. 19. Learned counsel for the appellant first pointed out the situation at which both parties were place then. The lessor having such a pucca residential building with a sprawling compound attached to it had to remain in New Delhi as he was working as Secretary to the Government of India. The lessee who was a public servant working at Kasarcodu needed a house to live in at that place. Such facts, according to the learned counsel, would clearly show that it was the building which was of prime consideration for the lease. The attached compound could not have been left out, for practical reasons, uncared by any one and hence it became necessary to include that compound area also as part of the lease. The said contention cannot be sidelined as without force.20. Learned counsel then highlighted the factors such as provisions for payment of rent every month and liability to pay interest from the date of default and contended that they are clear indications in favour of the lease being that of building with the land adjoining thereto. The very fact that the land portion is described as "adjoining to the building" is proof positive of its object, according to the learned counsel. He also contended that if the land was intended to be enjoyed, de hors the building, no provision was necessary to prohibit the lessee from effecting any improvement on the land. It is only the fruits of the trees which the lessee was permitted to take.21. The fact that another building situated within the boundaries has been remained by the lessor is a pointer indicating that the land was only to be used as adjunct to the residential building. Over and above all those, the interdict against making any improvement on the land is a stirring creature which is in conflict with the idea of land becoming the dominant factor of the lease. No lease of land can possibly be conceived without the lessee being given freedom to use the land to generate profit therefrom. Here the lease imposed a complete ban on the lessee to use the land for such purpose. All that he is permitted thereon is to take usufructs of the trees already standing on the land.22. A reading of the lease deed from the above angles indicates that there was no idea for the lessor to create a right to enjoy the land independent of the building but only to take usufruct of the trees standing thereon while residing in the building. The area of the land alone cannot be a determinative factor. It was common practice could well have been followed by the parties in the lease deed which is subject matter of the case.23. For the aforesaid reasons we take the view that the lease was of building with the landed area meant as appurtenant thereto. Its corollary is that the leases exempted from Chapter II of the Act and the consequence is that respondent cannot claim any right under Section 72B of the Act. | 1[ds]21. The fact that another building situated within the boundaries has been remained by the lessor is a pointer indicating that the land was only to be used as adjunct to the residential building. Over and above all those, the interdict against making any improvement on the land is a stirring creature which is in conflict with the idea of land becoming the dominant factor of the lease. No lease of land can possibly be conceived without the lessee being given freedom to use the land to generate profit therefrom. Here the lease imposed a complete ban on the lessee to use the land for such purpose. All that he is permitted thereon is to take usufructs of the trees already standing on the land.22. A reading of the lease deed from the above angles indicates that there was no idea for the lessor to create a right to enjoy the land independent of the building but only to take usufruct of the trees standing thereon while residing in the building. The area of the land alone cannot be a determinative factor. It was common practice could well have been followed by the parties in the lease deed which is subject matter of the case.23. For the aforesaid reasons we take the view that the lease was of building with the landed area meant as appurtenant thereto. Its corollary is that the leases exempted from Chapter II of the Act and the consequence is that respondent cannot claim any right under Section 72B of the Act. | 1 | 2,801 | 274 | ### 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:
agreed to by the lessor the additional potion is taken possession of by the lessee, and this Chalageni Chit is executed." 15. In the next paragraph of the lease deed it is stated that the property described thereunder in which the house wherein the lessee resides now, is included, together with the bath-room (which was constructed by the lessor) and the trees on the property, have been demised by the lessor to the lessee for a period starting from 1.7.1951 and ending with 30.6.1952. The other stipulations in the lease deed are the following : (1) The lessee is liable to pay the monthly rent of Rs. 9/- by the 10th day of every succeeding month. (2) If the rent falls in arrears it shall bear interest at the rate of 5 per cent per annum from the date of default. (3) All the improvements standing on the landed area would belong to the lessor. (4) The lessee has no right (a) to effect any kinds of improvement on the land, (b) to make any repairs to the building without the written consent of the lessor or to make any claim for the cost incurred for such repairs, (c) to cut any of the trees without any proper reasons, (d) to sub-lease or to alienate to any other person. 16. The description of the property is as follows: Â?37Â?3 Å The western portion of the property lying in survey R.S. No. 112/1, having an extent of 1.60 acres and the tiled residential building (in which lessee is residing) together with a bathroom (in which lessee is residing) together with a bathroom, 33 coconut trees (among which 21 are yielding), 7 jack trees, 7 mango trees, 50 cashew trees, 2 nellikai trees and 2 casuraina trees. It is made clear that the other pucca building situated on the land is not included in the lease. 17. Learned counsel contended that factors such as the nomenclature as "Chalageni" and that the lease is expansion of the original lease, are positive indications in favour of the lease being mainly one of land. Nomenclature does not matter in this case because even the previous deed of 1947 also contained the same appellation. Nor can the fact that it is expansion of the first lease be of any decisive impact, for that creature can be highlighted by both sides as a supporting factor to their respective stand. 18. One standard by which this document can be tested by discerning the predominant factor therein - building or land - can be this : Was it one lease for the building and the landed portion was added as appendage or incidental thereto ? Or was it one document for two separate demises i.e. one for building and the other for the land ? It is difficult to make out a third possibility that it would have been only one lease where the predominant factor was land, the building being of subsidiary importance. 19. Learned counsel for the appellant first pointed out the situation at which both parties were place then. The lessor having such a pucca residential building with a sprawling compound attached to it had to remain in New Delhi as he was working as Secretary to the Government of India. The lessee who was a public servant working at Kasarcodu needed a house to live in at that place. Such facts, according to the learned counsel, would clearly show that it was the building which was of prime consideration for the lease. The attached compound could not have been left out, for practical reasons, uncared by any one and hence it became necessary to include that compound area also as part of the lease. The said contention cannot be sidelined as without force.20. Learned counsel then highlighted the factors such as provisions for payment of rent every month and liability to pay interest from the date of default and contended that they are clear indications in favour of the lease being that of building with the land adjoining thereto. The very fact that the land portion is described as "adjoining to the building" is proof positive of its object, according to the learned counsel. He also contended that if the land was intended to be enjoyed, de hors the building, no provision was necessary to prohibit the lessee from effecting any improvement on the land. It is only the fruits of the trees which the lessee was permitted to take.21. The fact that another building situated within the boundaries has been remained by the lessor is a pointer indicating that the land was only to be used as adjunct to the residential building. Over and above all those, the interdict against making any improvement on the land is a stirring creature which is in conflict with the idea of land becoming the dominant factor of the lease. No lease of land can possibly be conceived without the lessee being given freedom to use the land to generate profit therefrom. Here the lease imposed a complete ban on the lessee to use the land for such purpose. All that he is permitted thereon is to take usufructs of the trees already standing on the land.22. A reading of the lease deed from the above angles indicates that there was no idea for the lessor to create a right to enjoy the land independent of the building but only to take usufruct of the trees standing thereon while residing in the building. The area of the land alone cannot be a determinative factor. It was common practice could well have been followed by the parties in the lease deed which is subject matter of the case.23. For the aforesaid reasons we take the view that the lease was of building with the landed area meant as appurtenant thereto. Its corollary is that the leases exempted from Chapter II of the Act and the consequence is that respondent cannot claim any right under Section 72B of the Act.
### Response:
1
### Explanation:
21. The fact that another building situated within the boundaries has been remained by the lessor is a pointer indicating that the land was only to be used as adjunct to the residential building. Over and above all those, the interdict against making any improvement on the land is a stirring creature which is in conflict with the idea of land becoming the dominant factor of the lease. No lease of land can possibly be conceived without the lessee being given freedom to use the land to generate profit therefrom. Here the lease imposed a complete ban on the lessee to use the land for such purpose. All that he is permitted thereon is to take usufructs of the trees already standing on the land.22. A reading of the lease deed from the above angles indicates that there was no idea for the lessor to create a right to enjoy the land independent of the building but only to take usufruct of the trees standing thereon while residing in the building. The area of the land alone cannot be a determinative factor. It was common practice could well have been followed by the parties in the lease deed which is subject matter of the case.23. For the aforesaid reasons we take the view that the lease was of building with the landed area meant as appurtenant thereto. Its corollary is that the leases exempted from Chapter II of the Act and the consequence is that respondent cannot claim any right under Section 72B of the Act.
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Avtar Singh & Others Vs. The State of Jammu & Kashmir | drew my attention to the views expressed by this Court in Ujagar Singh v. State of Punjab, 1952 SCR 756 = (AIR 1952 SC 350 ), to the following effect:- Let us now turn our attention to the main contentions. There is nothing strange or surprising in the fact that the same grounds have been repeated after the lapse of several months In both the cases, when it is remembered that the petitioners were under detention and in jail during the whole of the intervening period. No fresh activities could be attributed to them. There could only be a repetition of the original ground or grounds, whether good or bad. It does not follow from this that the satisfaction of the detaining authority was purely mechanical and that the mind did not go with the pen. The past conduct or antecedent history of a person can be taken into account when making a detention order, and, as a matter of fact, it is largely from prior events showing the tendencies or indications of the man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order. If the authority satisfied himself that the original ground was still available and that there was need for detention on its basis, no male fides can be attributed to the authority from this fact alone." Relying on this principle laid down by this Court, it was urged by learned counsel that, in the present case also, no inference could be made that the fresh order under R. 30 (1) (b) for detention of the petitioner was mala fide and, consequently, it should not be held that it is liable to be vacated. The question of applying these views to the present case does not arise, because there is no allegation that the fresh order made against the petitioner under R. 30 (1) (b) amounted to exercise of power mala fide. The ground on which that order has to be held to be invalid is entirely different. That ground is that, even though the Government may not have acted deliberately with the purpose of depriving the petitioner of his rights, the effect of that order at least is that he, in fact, is prejudiced inasmuch as he does not get an opportunity at all to submit an explanation or place other materials to correct or contradict the evidence on the basis of which the Government would have been required to make an order of continuation under R. 30-A (9).By proceeding under R. 30 (1) (b) instead of R. 30-A (9), which is the Rule under which, according to the scheme of the Rules, the Government should have proceeded, the Government has rendered R. 30-A (9) ineffective. This procedure necessarily results in substantial prejudice to the petitioner. It is not a question of a mere formality or technical defect. The right envisaged by this Court in Lakhanpals case, W. P. No. 258 of l966, D/- 7-3-1967 = (AIR 1967 SC 1507 ) (supra) accruing to a detenu, when his case is reviewed and an order of continuation of detention is made, is a valuable right and its deprivation will amount to material prejudice. In these circumstances, if the Government had, in fact, adopted the course of giving an opportunity to the petitioner to correct or contradict the evidence existing against him either by explanation or through other materials which he could place before the Government, and had then proceeded to make an order under R. 30 (1) (b), no such objection could have been taken, because it would have been a question of mere technicality that the order being made by the Government was one of a fresh detention under R. 30 (1) (b) instead of an order of continuation under R. 30-A(9). The question whether, after affording such an opportunity, the Government could have validly made an order of continuation under R. 30-A (9) is already under consideration of this Court in two petitions which are to come up for hearing after the vacation, and, consequently, I refrain from expressing any opinion on it. It does, however, appear to me that, if the Government had given the requisite opportunity to the petitioner and had then proceeded to make the order under R. 30 (1) (b), no objection of substantial prejudice could have been taken on the ground of not proceeding under R. 30-A (9).Further, there might not have been any technical defect also, because the order under R. 30 (1) (b) could then be made on the basis of the material which already existed before the Government and which could lead the Government to form the opinion that the detention of the petitioner was necessary even after taking into account the explanation or the materials supplied by him. The order made under R. 30 (1) (b) completely ignoring the purpose and object of R. 30-A(9) must, in these circumstances, be held to be in contravention of the scheme of the Defence of India Rules and, consequently, must be struck down as invalid, so that the detention of the petitioner is not legalised by this fresh order under R. 30 (1) (b). 8. The cases of the remaining four petitioners only differ from the case of Ghulam Ahmad with regard to the dates of the original orders of detention under R. 30 (1) (b), the dates of invalid orders of continuation under R. 30-A (9) made in their cases without complying with the requirements indicated in Lakhanpals case, W. P. No. 258 of 1966, D/- 7-3-1967 - (AIR 1967 SC 1507 ) (supra), and in some cases the dates on which fresh orders under R. 30(1)(b) were made. These differences are, however, not at all material to the question of validity of the fresh detention orders made in their cases; and the principle which I have laid down in the case of Ghulam Ahmad, consequently, fully applies to their cases also. | 1[ds]6. It, however, appears that the principle laid down in those two cases is not applicable to the present case, because, in the present case, the original order of detention, dated 11th March l966 was a valid order and it had completely exhausted itself when the petitioner was kept under detention for the first six months in pursuance of that order. Thereafter, any order cancelling that order, dated 11th March 1966, would be ineffective and meaningless. Further, under the scheme of the Defence of India Rules, if, without any additional grounds coming into existence, the State Government considered it necessary that the detention of the petitioner should be continued, the proper course open to the State Government was to make an order of continuation under R.A (9), after reviewing the original order within the period prescribed in that RuleIf there were no fresh or additional grounds which came into existence after 11th March 1966, the making of another fresh order under Rule 30 (1) (b) would really amount to a subterfuge adopted for the purpose of getting round the provisions of R.A (9) under which an order of continuation of detention had to be made and that order had to be a quasi judicial order and not merely an executive order. By purporting to act under R. 30 (1) (b) and passing a fresh order under it, the State Government obviously deprived the petitioner of the right of tendering an explanation or supplying materials to show that there was no justification for continuing his detention. In fact, if it were to be held that the State Government could validly make a fresh order under R. 30 (1) (b) on the same materials, on which the order, dated 11th March 1966 was made, after that order had already taken full effect, the result would be that in every case it would be open to the Government to keep on making repeated orders under R. 30 (1) (b) on the expiry of six months from each order in the case of the same detenu and, thus, avoid the requirement of making a quasi judicial order under R.A (9) As a consequence, the detenu would never get an opportunity of either submitting an explanation or supplying materials to satisfy the Government that there was no justification for further continuing his detention. In these circumstances, it has to be held that the present case is distinguishable from the two cases cited aboveRelying on this principle laid down by this Court, it was urged by learned counsel that, in the present case also, no inference could be made that the fresh order under R. 30 (1) (b) for detention of the petitioner was mala fide and, consequently, it should not be held that it is liable to be vacated.The question of applying these views to the present case does not arise, because there is no allegation that the fresh order made against the petitioner under R. 30 (1) (b) amounted to exercise of power mala fide. The ground on which that order has to be held to be invalid is entirely different. That ground is that, even though the Government may not have acted deliberately with the purpose of depriving the petitioner of his rights, the effect of that order at least is that he, in fact, is prejudiced inasmuch as he does not get an opportunity at all to submit an explanation or place other materials to correct or contradict the evidence on the basis of which the Government would have been required to make an order of continuation under R.A (9).By proceeding under R. 30 (1) (b) instead of R.A (9), which is the Rule under which, according to the scheme of the Rules, the Government should have proceeded, the Government has rendered R.A (9) ineffective. This procedure necessarily results in substantial prejudice to the petitioner. It is not a question of a mere formality or technical defectIn these circumstances, if the Government had, in fact, adopted the course of giving an opportunity to the petitioner to correct or contradict the evidence existing against him either by explanation or through other materials which he could place before the Government, and had then proceeded to make an order under R. 30 (1) (b), no such objection could have been taken, because it would have been a question of mere technicality that the order being made by the Government was one of a fresh detention under R. 30 (1) (b) instead of an order of continuation under R.. The question whether, after affording such an opportunity, the Government could have validly made an order of continuation under R.A (9) is already under consideration of this Court in two petitions which are to come up for hearing after the vacation, and, consequently, I refrain from expressing any opinion on it. It does, however, appear to me that, if the Government had given the requisite opportunity to the petitioner and had then proceeded to make the order under R. 30 (1) (b), no objection of substantial prejudice could have been taken on the ground of not proceeding under R.A (9).Further, there might not have been any technical defect also, because the order under R. 30 (1) (b) could then be made on the basis of the material which already existed before the Government and which could lead the Government to form the opinion that the detention of the petitioner was necessary even after taking into account the explanation or the materials supplied by him. The order made under R. 30 (1) (b) completely ignoring the purpose and object of R.8. The cases of the remaining four petitioners only differ from the case of Ghulam Ahmad with regard to the dates of the original orders of detention under R. 30 (1) (b), the dates of invalid orders of continuation under R.A (9) made in their cases without complying with the requirements indicated in Lakhanpals case, W. P. No. 258 of 1966, D/7 (AIR 1967 SC 1507 )(supra), and in some cases the dates on which fresh orders under R. 30(1)(b) were made. These differences are, however, not at all material to the question of validity of the fresh detention orders made in their cases; and the principle which I have laid down in the case of Ghulam Ahmad, consequently, fully applies to their cases also. | 1 | 3,379 | 1,226 | ### 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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drew my attention to the views expressed by this Court in Ujagar Singh v. State of Punjab, 1952 SCR 756 = (AIR 1952 SC 350 ), to the following effect:- Let us now turn our attention to the main contentions. There is nothing strange or surprising in the fact that the same grounds have been repeated after the lapse of several months In both the cases, when it is remembered that the petitioners were under detention and in jail during the whole of the intervening period. No fresh activities could be attributed to them. There could only be a repetition of the original ground or grounds, whether good or bad. It does not follow from this that the satisfaction of the detaining authority was purely mechanical and that the mind did not go with the pen. The past conduct or antecedent history of a person can be taken into account when making a detention order, and, as a matter of fact, it is largely from prior events showing the tendencies or indications of the man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order. If the authority satisfied himself that the original ground was still available and that there was need for detention on its basis, no male fides can be attributed to the authority from this fact alone." Relying on this principle laid down by this Court, it was urged by learned counsel that, in the present case also, no inference could be made that the fresh order under R. 30 (1) (b) for detention of the petitioner was mala fide and, consequently, it should not be held that it is liable to be vacated. The question of applying these views to the present case does not arise, because there is no allegation that the fresh order made against the petitioner under R. 30 (1) (b) amounted to exercise of power mala fide. The ground on which that order has to be held to be invalid is entirely different. That ground is that, even though the Government may not have acted deliberately with the purpose of depriving the petitioner of his rights, the effect of that order at least is that he, in fact, is prejudiced inasmuch as he does not get an opportunity at all to submit an explanation or place other materials to correct or contradict the evidence on the basis of which the Government would have been required to make an order of continuation under R. 30-A (9).By proceeding under R. 30 (1) (b) instead of R. 30-A (9), which is the Rule under which, according to the scheme of the Rules, the Government should have proceeded, the Government has rendered R. 30-A (9) ineffective. This procedure necessarily results in substantial prejudice to the petitioner. It is not a question of a mere formality or technical defect. The right envisaged by this Court in Lakhanpals case, W. P. No. 258 of l966, D/- 7-3-1967 = (AIR 1967 SC 1507 ) (supra) accruing to a detenu, when his case is reviewed and an order of continuation of detention is made, is a valuable right and its deprivation will amount to material prejudice. In these circumstances, if the Government had, in fact, adopted the course of giving an opportunity to the petitioner to correct or contradict the evidence existing against him either by explanation or through other materials which he could place before the Government, and had then proceeded to make an order under R. 30 (1) (b), no such objection could have been taken, because it would have been a question of mere technicality that the order being made by the Government was one of a fresh detention under R. 30 (1) (b) instead of an order of continuation under R. 30-A(9). The question whether, after affording such an opportunity, the Government could have validly made an order of continuation under R. 30-A (9) is already under consideration of this Court in two petitions which are to come up for hearing after the vacation, and, consequently, I refrain from expressing any opinion on it. It does, however, appear to me that, if the Government had given the requisite opportunity to the petitioner and had then proceeded to make the order under R. 30 (1) (b), no objection of substantial prejudice could have been taken on the ground of not proceeding under R. 30-A (9).Further, there might not have been any technical defect also, because the order under R. 30 (1) (b) could then be made on the basis of the material which already existed before the Government and which could lead the Government to form the opinion that the detention of the petitioner was necessary even after taking into account the explanation or the materials supplied by him. The order made under R. 30 (1) (b) completely ignoring the purpose and object of R. 30-A(9) must, in these circumstances, be held to be in contravention of the scheme of the Defence of India Rules and, consequently, must be struck down as invalid, so that the detention of the petitioner is not legalised by this fresh order under R. 30 (1) (b). 8. The cases of the remaining four petitioners only differ from the case of Ghulam Ahmad with regard to the dates of the original orders of detention under R. 30 (1) (b), the dates of invalid orders of continuation under R. 30-A (9) made in their cases without complying with the requirements indicated in Lakhanpals case, W. P. No. 258 of 1966, D/- 7-3-1967 - (AIR 1967 SC 1507 ) (supra), and in some cases the dates on which fresh orders under R. 30(1)(b) were made. These differences are, however, not at all material to the question of validity of the fresh detention orders made in their cases; and the principle which I have laid down in the case of Ghulam Ahmad, consequently, fully applies to their cases also.
### Response:
1
### Explanation:
of that order. Thereafter, any order cancelling that order, dated 11th March 1966, would be ineffective and meaningless. Further, under the scheme of the Defence of India Rules, if, without any additional grounds coming into existence, the State Government considered it necessary that the detention of the petitioner should be continued, the proper course open to the State Government was to make an order of continuation under R.A (9), after reviewing the original order within the period prescribed in that RuleIf there were no fresh or additional grounds which came into existence after 11th March 1966, the making of another fresh order under Rule 30 (1) (b) would really amount to a subterfuge adopted for the purpose of getting round the provisions of R.A (9) under which an order of continuation of detention had to be made and that order had to be a quasi judicial order and not merely an executive order. By purporting to act under R. 30 (1) (b) and passing a fresh order under it, the State Government obviously deprived the petitioner of the right of tendering an explanation or supplying materials to show that there was no justification for continuing his detention. In fact, if it were to be held that the State Government could validly make a fresh order under R. 30 (1) (b) on the same materials, on which the order, dated 11th March 1966 was made, after that order had already taken full effect, the result would be that in every case it would be open to the Government to keep on making repeated orders under R. 30 (1) (b) on the expiry of six months from each order in the case of the same detenu and, thus, avoid the requirement of making a quasi judicial order under R.A (9) As a consequence, the detenu would never get an opportunity of either submitting an explanation or supplying materials to satisfy the Government that there was no justification for further continuing his detention. In these circumstances, it has to be held that the present case is distinguishable from the two cases cited aboveRelying on this principle laid down by this Court, it was urged by learned counsel that, in the present case also, no inference could be made that the fresh order under R. 30 (1) (b) for detention of the petitioner was mala fide and, consequently, it should not be held that it is liable to be vacated.The question of applying these views to the present case does not arise, because there is no allegation that the fresh order made against the petitioner under R. 30 (1) (b) amounted to exercise of power mala fide. The ground on which that order has to be held to be invalid is entirely different. That ground is that, even though the Government may not have acted deliberately with the purpose of depriving the petitioner of his rights, the effect of that order at least is that he, in fact, is prejudiced inasmuch as he does not get an opportunity at all to submit an explanation or place other materials to correct or contradict the evidence on the basis of which the Government would have been required to make an order of continuation under R.A (9).By proceeding under R. 30 (1) (b) instead of R.A (9), which is the Rule under which, according to the scheme of the Rules, the Government should have proceeded, the Government has rendered R.A (9) ineffective. This procedure necessarily results in substantial prejudice to the petitioner. It is not a question of a mere formality or technical defectIn these circumstances, if the Government had, in fact, adopted the course of giving an opportunity to the petitioner to correct or contradict the evidence existing against him either by explanation or through other materials which he could place before the Government, and had then proceeded to make an order under R. 30 (1) (b), no such objection could have been taken, because it would have been a question of mere technicality that the order being made by the Government was one of a fresh detention under R. 30 (1) (b) instead of an order of continuation under R.. The question whether, after affording such an opportunity, the Government could have validly made an order of continuation under R.A (9) is already under consideration of this Court in two petitions which are to come up for hearing after the vacation, and, consequently, I refrain from expressing any opinion on it. It does, however, appear to me that, if the Government had given the requisite opportunity to the petitioner and had then proceeded to make the order under R. 30 (1) (b), no objection of substantial prejudice could have been taken on the ground of not proceeding under R.A (9).Further, there might not have been any technical defect also, because the order under R. 30 (1) (b) could then be made on the basis of the material which already existed before the Government and which could lead the Government to form the opinion that the detention of the petitioner was necessary even after taking into account the explanation or the materials supplied by him. The order made under R. 30 (1) (b) completely ignoring the purpose and object of R.8. The cases of the remaining four petitioners only differ from the case of Ghulam Ahmad with regard to the dates of the original orders of detention under R. 30 (1) (b), the dates of invalid orders of continuation under R.A (9) made in their cases without complying with the requirements indicated in Lakhanpals case, W. P. No. 258 of 1966, D/7 (AIR 1967 SC 1507 )(supra), and in some cases the dates on which fresh orders under R. 30(1)(b) were made. These differences are, however, not at all material to the question of validity of the fresh detention orders made in their cases; and the principle which I have laid down in the case of Ghulam Ahmad, consequently, fully applies to their cases also.
|
Malik Brothers Vs. Narendra Dadhich | law on the subject, came to the conclusion that there has been a gross violation of the aforesaid provision of the Arbitration Act and it is not known why respondent No. 1 (Indore Development Authority) elected to appoint the arbitrator. The High Court also came to the further conclusion that the land would not have been disposed of even on lease basis through arbitration and the Indore Development Authority committed an error of law and consequent public injury by revival of a close issue by appointment of an arbitration and by its attempt benefited the present appellant at the cost of public revenue. With the aforesaid conclusion, the High Court quashed the resolution of the Indore Development Authority, referring the dispute to the arbitrator as well as the award of the arbitrator and passed certain consequential directions. The question that arises for consideration therefore, it whether in the facts and circumstances of the case, the High Court was justified in entertaining a writ petition in the garb of a public interest litigation and was justified even in setting aside the award of a competent arbitrator which was not assailed under the provisions of the Arbitration Act but by filing a petition under Article 226 on the ground that the very decision of the Improvement Trust, referring the matter to the arbitrator was illegal and has caused public injury. 4. At the outset it may be stated that the land in question was admittedly put to public auction and the appellant was the highest bidder and this fact has not been disputed at any stage. The further admitted position is that the appellant had deposited some amount but could not deposit the balance amount even though the bid of the appellant was accepted by the competent authority and for non-deposit of the balance amount, the earlier amount deposited stood forfeited which however was challenged by the appellant. It is at that stage the Indore Development Authority took into consideration all the relevant factors and thought it appropriate to refer all disputes pertaining to the land, which was subject matter of the auction for arbitration. Not an iota of material has been placed before us to indicate that the said decision of the Improvement Trust was either for extraneous consideration or had not been taken bona fide. In course of hearing of this appeal, not an iota of material was produced before us by respondent No. 1 at whose instance the High Court had entertained the public interest litigation petition to indicate that there was any infirmity in the auction that was held on 15.4.81 and that the highest bid obtained was not genuine and the price obtained thereon is grossly low. Though a bald ascertain had been made by respondent No. 1 that the normal price of the land would be much higher than the highest auction price which the appellant had offered but no substantive material had been produced in the High Court and nothing has been brought to the notice of this court also. In this view of the matter we fail to understand as to how the High Court could come to the conclusion that there has been gross public injury by referring the matter to the arbitrator and the Improvement Trust has acted beyond its jurisdiction by referring the dispute pertaining to the land in question to the arbitrator. In our considered opinion the very act of entertaining the application as a public interest litigation of the behest of respondent No. 1, who has absolutely no interest in the transaction was improper and the High Court had in fact not adverted to the parameters for entertaining a petition as a public interest litigation. It may not be out of place to mention at this stage that two other auctions, similarly held were not assailed but it is the auction where the appellant was the highest bidder was only assailed for the reasons known to respondent No. 1. When the appellant had challenged the legality of the action of the competent authority in the matter of forfeiture of the deposit made, the competent authority thought it appropriate to refer the entire dispute pertaining to the land in question for arbitration and we see no infirmity with that decision nor that decision can be said to have been taken on some extraneous consideration. We also fail to appreciate the conclusion of the High Court on Section 21 of the Arbitration Act inasmuch as there is no bar for parties to a dispute to refer the dispute for arbitration instead of litigating in common law courts. In our view, Section 21 of the Arbitration Act does not debar the parties to refer a dispute between them to an arbitrator, particularly when the litigation in normal course has become not only expensive but also continues for years together. If any informal forum is chosen by the parties for expeditious decision of their disputes, it would not be safe for a court of law to come to a conclusion that such decision has been taken for any extraneous consideration without any supporting material in that regard. In the case in hand, the High Court of Madhya Pradesh committed serious error of law by invoking its discretionary jurisdiction under Article 226 of the Constitution of India at the behest of a person who has no interest in the litigation in question and in quashing the decision of the Indore Development Authority of referring the dispute to the arbitrator as well as the award of the competent arbitrator, by entering into an arena of conjecture and by assuming that the price of land must have gone up without having before them any materials in that respect. We have no hesitation, therefore to set aside the impugned judgment of the High Court and we accordingly do so. Necessarily, therefore, the award of the competent arbitrator remains operative and the rights of the parties flowing therefrom have to be worked out in accordance with law. 5. | 1[ds]In our view, Section 21 of the Arbitration Act does not debar the parties to refer a dispute between them to an arbitrator, particularly when the litigation in normal course has become not only expensive but also continues for years together. If any informal forum is chosen by the parties for expeditious decision of their disputes, it would not be safe for a court of law to come to a conclusion that such decision has been taken for any extraneous consideration without any supporting material in that regard. In the case in hand, the High Court of Madhya Pradesh committed serious error of law by invoking its discretionary jurisdiction under Article 226 of the Constitution of India at the behest of a person who has no interest in the litigation in question and in quashing the decision of the Indore Development Authority of referring the dispute to the arbitrator as well as the award of the competent arbitrator, by entering into an arena of conjecture and by assuming that the price of land must have gone up without having before them any materials in that respect. We have no hesitation, therefore to set aside the impugned judgment of the High Court and we accordingly do so. Necessarily, therefore, the award of the competent arbitrator remains operative and the rights of the parties flowing therefrom have to be worked out in accordance with law. | 1 | 2,511 | 250 | ### 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:
law on the subject, came to the conclusion that there has been a gross violation of the aforesaid provision of the Arbitration Act and it is not known why respondent No. 1 (Indore Development Authority) elected to appoint the arbitrator. The High Court also came to the further conclusion that the land would not have been disposed of even on lease basis through arbitration and the Indore Development Authority committed an error of law and consequent public injury by revival of a close issue by appointment of an arbitration and by its attempt benefited the present appellant at the cost of public revenue. With the aforesaid conclusion, the High Court quashed the resolution of the Indore Development Authority, referring the dispute to the arbitrator as well as the award of the arbitrator and passed certain consequential directions. The question that arises for consideration therefore, it whether in the facts and circumstances of the case, the High Court was justified in entertaining a writ petition in the garb of a public interest litigation and was justified even in setting aside the award of a competent arbitrator which was not assailed under the provisions of the Arbitration Act but by filing a petition under Article 226 on the ground that the very decision of the Improvement Trust, referring the matter to the arbitrator was illegal and has caused public injury. 4. At the outset it may be stated that the land in question was admittedly put to public auction and the appellant was the highest bidder and this fact has not been disputed at any stage. The further admitted position is that the appellant had deposited some amount but could not deposit the balance amount even though the bid of the appellant was accepted by the competent authority and for non-deposit of the balance amount, the earlier amount deposited stood forfeited which however was challenged by the appellant. It is at that stage the Indore Development Authority took into consideration all the relevant factors and thought it appropriate to refer all disputes pertaining to the land, which was subject matter of the auction for arbitration. Not an iota of material has been placed before us to indicate that the said decision of the Improvement Trust was either for extraneous consideration or had not been taken bona fide. In course of hearing of this appeal, not an iota of material was produced before us by respondent No. 1 at whose instance the High Court had entertained the public interest litigation petition to indicate that there was any infirmity in the auction that was held on 15.4.81 and that the highest bid obtained was not genuine and the price obtained thereon is grossly low. Though a bald ascertain had been made by respondent No. 1 that the normal price of the land would be much higher than the highest auction price which the appellant had offered but no substantive material had been produced in the High Court and nothing has been brought to the notice of this court also. In this view of the matter we fail to understand as to how the High Court could come to the conclusion that there has been gross public injury by referring the matter to the arbitrator and the Improvement Trust has acted beyond its jurisdiction by referring the dispute pertaining to the land in question to the arbitrator. In our considered opinion the very act of entertaining the application as a public interest litigation of the behest of respondent No. 1, who has absolutely no interest in the transaction was improper and the High Court had in fact not adverted to the parameters for entertaining a petition as a public interest litigation. It may not be out of place to mention at this stage that two other auctions, similarly held were not assailed but it is the auction where the appellant was the highest bidder was only assailed for the reasons known to respondent No. 1. When the appellant had challenged the legality of the action of the competent authority in the matter of forfeiture of the deposit made, the competent authority thought it appropriate to refer the entire dispute pertaining to the land in question for arbitration and we see no infirmity with that decision nor that decision can be said to have been taken on some extraneous consideration. We also fail to appreciate the conclusion of the High Court on Section 21 of the Arbitration Act inasmuch as there is no bar for parties to a dispute to refer the dispute for arbitration instead of litigating in common law courts. In our view, Section 21 of the Arbitration Act does not debar the parties to refer a dispute between them to an arbitrator, particularly when the litigation in normal course has become not only expensive but also continues for years together. If any informal forum is chosen by the parties for expeditious decision of their disputes, it would not be safe for a court of law to come to a conclusion that such decision has been taken for any extraneous consideration without any supporting material in that regard. In the case in hand, the High Court of Madhya Pradesh committed serious error of law by invoking its discretionary jurisdiction under Article 226 of the Constitution of India at the behest of a person who has no interest in the litigation in question and in quashing the decision of the Indore Development Authority of referring the dispute to the arbitrator as well as the award of the competent arbitrator, by entering into an arena of conjecture and by assuming that the price of land must have gone up without having before them any materials in that respect. We have no hesitation, therefore to set aside the impugned judgment of the High Court and we accordingly do so. Necessarily, therefore, the award of the competent arbitrator remains operative and the rights of the parties flowing therefrom have to be worked out in accordance with law. 5.
### Response:
1
### Explanation:
In our view, Section 21 of the Arbitration Act does not debar the parties to refer a dispute between them to an arbitrator, particularly when the litigation in normal course has become not only expensive but also continues for years together. If any informal forum is chosen by the parties for expeditious decision of their disputes, it would not be safe for a court of law to come to a conclusion that such decision has been taken for any extraneous consideration without any supporting material in that regard. In the case in hand, the High Court of Madhya Pradesh committed serious error of law by invoking its discretionary jurisdiction under Article 226 of the Constitution of India at the behest of a person who has no interest in the litigation in question and in quashing the decision of the Indore Development Authority of referring the dispute to the arbitrator as well as the award of the competent arbitrator, by entering into an arena of conjecture and by assuming that the price of land must have gone up without having before them any materials in that respect. We have no hesitation, therefore to set aside the impugned judgment of the High Court and we accordingly do so. Necessarily, therefore, the award of the competent arbitrator remains operative and the rights of the parties flowing therefrom have to be worked out in accordance with law.
|
Municipal Corporation, Indore Vs. Rai Bahadur Seth Hiralal & Others | the amount of tax assessed on the basis of such valuation or annual letting value. Under Sections 75 and 76 when the assessment list is prepared in accordance with the provisions of section 73 it has to be published and time has- to be fixed for lodging objections against the entries therein. After such objections are heard and disposed of the assessment list has to be authenticated as provided by section 76 (6). Sub-s (6) of section 76 lays down that such assessment list when authenticated becomes conclusive evidence for purposes of all taxes, of the valuation or annual letting value and of the amount of tax leviable on such buildings or lands or both in any official year in which such list is in force. The Municipal Tax is an annual tax leviable for a particular official year and the assessment list on the basis of which the tax is assessed is for each such official year. This is supported by the words "such assessment list" and "of the amount of tax leviable........in any official year in which such list is in force" in section 76 (6). 8. Ordinarily, therefore, the Municipal Corporation has to prepare a fresh assessment list every year. The legislature however has empowered by section 79, as other State legislatures have similarly done in several Municipal Acts, to adopt the valuation and assessment contained in the assessment list prepared in an earlier year provided, however, tint it prepares a fresh list once in every 4 years. But sub-section (2) of section 79 provides expressly that when such a previous list is adopted for a particular official year it can be done subject to the provisions of Secs. 75 and 76. In other words, an assessment list being for a particular official year even when an assessment list prepared in an earlier year is adopted it becomes the list for, such subsequent year subject to the procedure laid down in sections 75 and 76. The list so adopted has therefore to be published, has to invite objections and has to be authenticated in the manner prescribed by section 76 (6) after disposing of the objections if any and it is then only that it becomes conclusive evidence of the valuation and the tax assessed thereon for that particular official year.If it were otherwise, the annual letting value or the value estimated on a particular building or house would be static for 4 years during which the Corporation can go on adopting the assessment list prepared in an earlier year and the owner or the occupier of the building would be deprived of the right to object to the valuation or the annual betting value or the tax assessed thereon for at least 4 years even though the valuation or the annual letting value thereof may, have decreased for one reason, or the other. In order to prevent such a result the legislature has provided by sub-section (2) of section 79 that where a municipality adopts a previously prepared list for any subsequent year the provisions of sections 75 and 76 shall be applicable as if a new assessment list has been completed at the commencement of that particular official year.The word, "if" appearing in sub-section (2) of section 79 is obviously a mistake and must be read as "as if" because the word "if" standing by itself makes no sense at all. Section 79 therefore has to be construed to mean that though a Municipality need not prepare a fresh assessment list every year and need prepare such list once in every 4 years and can adopt an earlier assessment list such an adopted list becomes the assessment list for that particular year as if it was a new list and to which section" 75 and 76 apply. 9. The result of the foregoing discussion is that the appellant Corporation was entitled to adopt the assesment list prepared for the year 1952-53 for the two assessment years, 1953-54 and 1954-55, under Sec. 79 and therefore that list became the assessment list for each of the 2 years in question. That fact however does not entitle the appellant Corporation to impose the house tax on the basis of the gross annual letting value as such imposition is inconsistent with section 78 under which the annual letting value would be the gross annual letting value less 10 per cent statutory allowance. 10. But the contention was that the tax imposed on the basis of the gross annual letting value was saved by S. 2 (c) and that that saving coupled with the fact that the assessment list prepared for 1952-53 was adopted for the years in question made the entries in the assessment list so adopted conclusive evidence of the annual letting value and the amount of tax assessed thereon and entitled the Corporation to collect the tax assessed on the gross annual letting value. Therefore, it was argued, both the annual letting value and the amount of tax shown in that list were conclusive evidence and could not be assailed. Counsel however forgets that even on the footing that the resolution passed by the Indore Municipality to levy the tax at 7 per cent of the gross annual letting value and on the strength of which the list for 1952-53 was prepared was saved and was deemed to have been made under the 1954 Act it can be deemed to have been so made in so far as it is consistent with the provisions of the Act. Therefore, to the extent that it is inconsistent with Section 73 it is neither saved nor deemed to have been made under the Act and has to be adjusted in the light of the provisions of Section 73(2). It follows that the appellant-Corporation was not entitled to demand the tax assessed on the gross annual letting value. The High Court therefore was right in decreeing the suit and to order refund of the said excess amount against the appellant Corporation. | 0[ds]4. These provisions show that though by Section 2 the new Act repealed the Indore City Municipal Act, 1908 along with other Acts, the legislature by Section 2 (c) saved certain things done under the repealed Acts, viz., rules. bye-laws, orders notifications and notices, taxes and rates made framed, passed, or imposed or deemed to have been made, framed, passed or imposed under the repealed Acts and added a fiction that so far as they are not inconsistent with the new Act they shall be deemed as if they were made, framed, passed or imposed as the case may be under this Act6. We are not impressed with these contentions as in our view they are not warranted on the true construction of the provisions of the Act.The Indore Municipal Act being no longer in force as from January 26 1954, obviously no tax could be levied or imposed thereunder after that date. The rules made and the taxes imposed under the repealed Act are no doubt amongst other things saved and are deemed to have been made, framed, passed or imposed under the new Act but Clause (c) of Section 2, it must not be forgotten, lays down an important qualification that they are to be deemed to have been made, or imposed etc., under the new Act to the extent that they are consistent with the provisions of the Act. Section 73 read with Section 69 provides that a tax on houses or buildings shall be levied on the annual letting value and that in assessing such tax a sum equal to 10 per cent of such letting value shall be deducted therefrom. The tax levied under the old Act and the rules framed thereunder on the basis of the gross annual letting value is obviously inconsistent with the provisions of Section 73 of the Act. The saving and the deeming provisions in Section 2 (c) can only apply if the tax is assessed in the manner consistent with the provisions of Section 73, that is, if it is assessed on the net and not the gross annual letting value after deducting 10 per cent statutory allowance in lieu of the casts of repairs or any other account whatsoever.If the construction of section 2 (c) as suggested by Counsel were to be accepted it would render section 73 (2) nugatory, for, the Municipal Corporation in that case can go on imposing the tax on the basis of the gross annual letting value forever despite the express provision for levying tax on the basis of net annual letting value, i. e., the value arrived at after deducting 10 per cent of the gross annual letting value7. The second part of the contention is equally unacceptable because, if accepted it will be contrary to the provisions of sections 75, 76 and 79 of the Act. After going through the procedure laid down in sections 70, 71 and 72 section 73 enjoins upon the Chief Executive Officer to have an assessment list made containing inter alla valuation or annual letting value at which the property is assessed and the amount of tax assessed on the basis of such valuation or annual letting value. Under Sections 75 and 76 when the assessment list is prepared in accordance with the provisions of section 73 it has to be published and time has- to be fixed for lodging objections against the entries therein. After such objections are heard and disposed of the assessment list has to be authenticated as provided by section 76 (6). Sub-s (6) of section 76 lays down that such assessment list when authenticated becomes conclusive evidence for purposes of all taxes, of the valuation or annual letting value and of the amount of tax leviable on such buildings or lands or both in any official year in which such list is in force. The Municipal Tax is an annual tax leviable for a particular official year and the assessment list on the basis of which the tax is assessed is for each such official year. This is supported by the words "such assessment list" and "of the amount of tax leviable........in any official year in which such list is in force" in section 76 (6)8. Ordinarily, therefore, the Municipal Corporation has to prepare a fresh assessment list every year. The legislature however has empowered by section 79, as other State legislatures have similarly done in several Municipal Acts, to adopt the valuation and assessment contained in the assessment list prepared in an earlier year provided, however, tint it prepares a fresh list once in every 4 years. But sub-section (2) of section 79 provides expressly that when such a previous list is adopted for a particular official year it can be done subject to the provisions of Secs. 75 and 76. In other words, an assessment list being for a particular official year even when an assessment list prepared in an earlier year is adopted it becomes the list for, such subsequent year subject to the procedure laid down in sections 75 and 76. The list so adopted has therefore to be published, has to invite objections and has to be authenticated in the manner prescribed by section 76 (6) after disposing of the objections if any and it is then only that it becomes conclusive evidence of the valuation and the tax assessed thereon for that particular official year.If it were otherwise, the annual letting value or the value estimated on a particular building or house would be static for 4 years during which the Corporation can go on adopting the assessment list prepared in an earlier year and the owner or the occupier of the building would be deprived of the right to object to the valuation or the annual betting value or the tax assessed thereon for at least 4 years even though the valuation or the annual letting value thereof may, have decreased for one reason, or the other. In order to prevent such a result the legislature has provided by sub-section (2) of section 79 that where a municipality adopts a previously prepared list for any subsequent year the provisions of sections 75 and 76 shall be applicable as if a new assessment list has been completed at the commencement of that particular official year.The word, "if" appearing in sub-section (2) of section 79 is obviously a mistake and must be read as "as if" because the word "if" standing by itself makes no sense at all. Section 79 therefore has to be construed to mean that though a Municipality need not prepare a fresh assessment list every year and need prepare such list once in every 4 years and can adopt an earlier assessment list such an adopted list becomes the assessment list for that particular year as if it was a new list and to which section" 75 and 76 apply9. The result of the foregoing discussion is that the appellant Corporation was entitled to adopt the assesment list prepared for the year 1952-53 for the two assessment years,4 and1954-55, under Sec. 79 and therefore that list became the assessment list for each of the 2 years in question. That fact however does not entitle the appellant Corporation to impose the house tax on the basis of the gross annual letting value as such imposition is inconsistent with section 78 under which the annual letting value would be the gross annual letting value less 10 per cent statutory allowanceCounsel however forgets that even on the footing that the resolution passed by the Indore Municipality to levy the tax at 7 per cent of the gross annual letting value and on the strength of which the list for 1952-53 was prepared was saved and was deemed to have been made under the 1954 Act it can be deemed to have been so made in so far as it is consistent with the provisions of the Act. Therefore, to the extent that it is inconsistent with Section 73 it is neither saved nor deemed to have been made under the Act and has to be adjusted in the light of the provisions of Section 73(2). It follows that the appellant-Corporation was not entitled to demand the tax assessed on the gross annual letting value. The High Court therefore was right in decreeing the suit and to order refund of the said excess amount against the appellant Corporation. | 0 | 3,029 | 1,520 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the amount of tax assessed on the basis of such valuation or annual letting value. Under Sections 75 and 76 when the assessment list is prepared in accordance with the provisions of section 73 it has to be published and time has- to be fixed for lodging objections against the entries therein. After such objections are heard and disposed of the assessment list has to be authenticated as provided by section 76 (6). Sub-s (6) of section 76 lays down that such assessment list when authenticated becomes conclusive evidence for purposes of all taxes, of the valuation or annual letting value and of the amount of tax leviable on such buildings or lands or both in any official year in which such list is in force. The Municipal Tax is an annual tax leviable for a particular official year and the assessment list on the basis of which the tax is assessed is for each such official year. This is supported by the words "such assessment list" and "of the amount of tax leviable........in any official year in which such list is in force" in section 76 (6). 8. Ordinarily, therefore, the Municipal Corporation has to prepare a fresh assessment list every year. The legislature however has empowered by section 79, as other State legislatures have similarly done in several Municipal Acts, to adopt the valuation and assessment contained in the assessment list prepared in an earlier year provided, however, tint it prepares a fresh list once in every 4 years. But sub-section (2) of section 79 provides expressly that when such a previous list is adopted for a particular official year it can be done subject to the provisions of Secs. 75 and 76. In other words, an assessment list being for a particular official year even when an assessment list prepared in an earlier year is adopted it becomes the list for, such subsequent year subject to the procedure laid down in sections 75 and 76. The list so adopted has therefore to be published, has to invite objections and has to be authenticated in the manner prescribed by section 76 (6) after disposing of the objections if any and it is then only that it becomes conclusive evidence of the valuation and the tax assessed thereon for that particular official year.If it were otherwise, the annual letting value or the value estimated on a particular building or house would be static for 4 years during which the Corporation can go on adopting the assessment list prepared in an earlier year and the owner or the occupier of the building would be deprived of the right to object to the valuation or the annual betting value or the tax assessed thereon for at least 4 years even though the valuation or the annual letting value thereof may, have decreased for one reason, or the other. In order to prevent such a result the legislature has provided by sub-section (2) of section 79 that where a municipality adopts a previously prepared list for any subsequent year the provisions of sections 75 and 76 shall be applicable as if a new assessment list has been completed at the commencement of that particular official year.The word, "if" appearing in sub-section (2) of section 79 is obviously a mistake and must be read as "as if" because the word "if" standing by itself makes no sense at all. Section 79 therefore has to be construed to mean that though a Municipality need not prepare a fresh assessment list every year and need prepare such list once in every 4 years and can adopt an earlier assessment list such an adopted list becomes the assessment list for that particular year as if it was a new list and to which section" 75 and 76 apply. 9. The result of the foregoing discussion is that the appellant Corporation was entitled to adopt the assesment list prepared for the year 1952-53 for the two assessment years, 1953-54 and 1954-55, under Sec. 79 and therefore that list became the assessment list for each of the 2 years in question. That fact however does not entitle the appellant Corporation to impose the house tax on the basis of the gross annual letting value as such imposition is inconsistent with section 78 under which the annual letting value would be the gross annual letting value less 10 per cent statutory allowance. 10. But the contention was that the tax imposed on the basis of the gross annual letting value was saved by S. 2 (c) and that that saving coupled with the fact that the assessment list prepared for 1952-53 was adopted for the years in question made the entries in the assessment list so adopted conclusive evidence of the annual letting value and the amount of tax assessed thereon and entitled the Corporation to collect the tax assessed on the gross annual letting value. Therefore, it was argued, both the annual letting value and the amount of tax shown in that list were conclusive evidence and could not be assailed. Counsel however forgets that even on the footing that the resolution passed by the Indore Municipality to levy the tax at 7 per cent of the gross annual letting value and on the strength of which the list for 1952-53 was prepared was saved and was deemed to have been made under the 1954 Act it can be deemed to have been so made in so far as it is consistent with the provisions of the Act. Therefore, to the extent that it is inconsistent with Section 73 it is neither saved nor deemed to have been made under the Act and has to be adjusted in the light of the provisions of Section 73(2). It follows that the appellant-Corporation was not entitled to demand the tax assessed on the gross annual letting value. The High Court therefore was right in decreeing the suit and to order refund of the said excess amount against the appellant Corporation.
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imposing the tax on the basis of the gross annual letting value forever despite the express provision for levying tax on the basis of net annual letting value, i. e., the value arrived at after deducting 10 per cent of the gross annual letting value7. The second part of the contention is equally unacceptable because, if accepted it will be contrary to the provisions of sections 75, 76 and 79 of the Act. After going through the procedure laid down in sections 70, 71 and 72 section 73 enjoins upon the Chief Executive Officer to have an assessment list made containing inter alla valuation or annual letting value at which the property is assessed and the amount of tax assessed on the basis of such valuation or annual letting value. Under Sections 75 and 76 when the assessment list is prepared in accordance with the provisions of section 73 it has to be published and time has- to be fixed for lodging objections against the entries therein. After such objections are heard and disposed of the assessment list has to be authenticated as provided by section 76 (6). Sub-s (6) of section 76 lays down that such assessment list when authenticated becomes conclusive evidence for purposes of all taxes, of the valuation or annual letting value and of the amount of tax leviable on such buildings or lands or both in any official year in which such list is in force. The Municipal Tax is an annual tax leviable for a particular official year and the assessment list on the basis of which the tax is assessed is for each such official year. This is supported by the words "such assessment list" and "of the amount of tax leviable........in any official year in which such list is in force" in section 76 (6)8. Ordinarily, therefore, the Municipal Corporation has to prepare a fresh assessment list every year. The legislature however has empowered by section 79, as other State legislatures have similarly done in several Municipal Acts, to adopt the valuation and assessment contained in the assessment list prepared in an earlier year provided, however, tint it prepares a fresh list once in every 4 years. But sub-section (2) of section 79 provides expressly that when such a previous list is adopted for a particular official year it can be done subject to the provisions of Secs. 75 and 76. In other words, an assessment list being for a particular official year even when an assessment list prepared in an earlier year is adopted it becomes the list for, such subsequent year subject to the procedure laid down in sections 75 and 76. The list so adopted has therefore to be published, has to invite objections and has to be authenticated in the manner prescribed by section 76 (6) after disposing of the objections if any and it is then only that it becomes conclusive evidence of the valuation and the tax assessed thereon for that particular official year.If it were otherwise, the annual letting value or the value estimated on a particular building or house would be static for 4 years during which the Corporation can go on adopting the assessment list prepared in an earlier year and the owner or the occupier of the building would be deprived of the right to object to the valuation or the annual betting value or the tax assessed thereon for at least 4 years even though the valuation or the annual letting value thereof may, have decreased for one reason, or the other. In order to prevent such a result the legislature has provided by sub-section (2) of section 79 that where a municipality adopts a previously prepared list for any subsequent year the provisions of sections 75 and 76 shall be applicable as if a new assessment list has been completed at the commencement of that particular official year.The word, "if" appearing in sub-section (2) of section 79 is obviously a mistake and must be read as "as if" because the word "if" standing by itself makes no sense at all. Section 79 therefore has to be construed to mean that though a Municipality need not prepare a fresh assessment list every year and need prepare such list once in every 4 years and can adopt an earlier assessment list such an adopted list becomes the assessment list for that particular year as if it was a new list and to which section" 75 and 76 apply9. The result of the foregoing discussion is that the appellant Corporation was entitled to adopt the assesment list prepared for the year 1952-53 for the two assessment years,4 and1954-55, under Sec. 79 and therefore that list became the assessment list for each of the 2 years in question. That fact however does not entitle the appellant Corporation to impose the house tax on the basis of the gross annual letting value as such imposition is inconsistent with section 78 under which the annual letting value would be the gross annual letting value less 10 per cent statutory allowanceCounsel however forgets that even on the footing that the resolution passed by the Indore Municipality to levy the tax at 7 per cent of the gross annual letting value and on the strength of which the list for 1952-53 was prepared was saved and was deemed to have been made under the 1954 Act it can be deemed to have been so made in so far as it is consistent with the provisions of the Act. Therefore, to the extent that it is inconsistent with Section 73 it is neither saved nor deemed to have been made under the Act and has to be adjusted in the light of the provisions of Section 73(2). It follows that the appellant-Corporation was not entitled to demand the tax assessed on the gross annual letting value. The High Court therefore was right in decreeing the suit and to order refund of the said excess amount against the appellant Corporation.
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Workmen Of M/S. Hindustan Motors Ltd Vs. M/S. Hindustan Motors,Ltd.,& Anr | of Rs. 14.48 lacs of investment came out of the paid-up capital. Consequently, no question can arise of reducing this amount from the paid-up capital when allowing 6 per cent return on it in accordance with the Full Bench Formula.41. Another deduction, while calculating the surplus out of the profits available for distribution of bonus, which has been challenged on behalf of the workmen relates to the income from home delivery commission. From the facts it appears that this Company was manufacturing cars in collaboration with a foreign concern and the arrangement was that, if that foreign concern sold any of its goods in India, the Company would be entitled to its commission on those even though the Company may not be a party to the transactions of those sales. This arrangement thus recognised the exclusive right of the Company in respect of sale of its cars and to reimbursement in case the foreign collaborator entered into transactions infringing that right. It seems to us that the income thus accruing to the Company has to be treated as extraneous income which was earned by the Company without any activities in which the workmen participated or contributed their labour. Learned counsel for the workmen referred us to the decisions of this Court in Tata Oil Mills Co. Ltd., (1960) 1 SCR 1 = (AIR 1959 SC 1065 ) (supra) and Voltas Limited v. Its Workmen, (1961) 3 SCR 167 = (AIR 1881 SC 941). The situations that were discussed in those cases were different. In those cases, the principle laid down was that, if any income was earned in the course of the normal business of the Company in which the workmen were also engaged that income must be included in the profits for calculation of surplus available for distribution of bonus. None of the instances that came up for consideration were similar to the one before us.The home delivery commission earned in the present case did not require any contribution of work or labour on the part of the workmen, and accrued to the Company simply because of its agreement with the foreign collaborator which entitled the Company to claim the commission without going through any process of manufacturing or selling the cars or their components. In the circumstances, the deduction of the home delivery commission from the profits was fully justified.42. The last point urged related to the interest on fixed deposits earned by the Company during the bonus year. We have already indicated earlier that a sum of Rs. 220 lacs was in fixed deposit account and the profit and loss account shows that a sum of Rs. 5.17 lacs was received as interest on it by the Company. This has also to be excluded when calculating the available surplus, because this income also accrued to the Company without any contribution on the part of the workmen. It was not the regular business of the Company to keep money in fixed deposits and earn interest thereon. At the same time, how ever, we feel that on equitable grounds, the Company should not be entitled to claim the sum of Rs. 2.16 lacs as an expenditure of the business of the Company in respect of interest paid to bank and others. When the Company was receiving interest on fixed deposits, it would he proper to hold that at least the interest paid by the Company should come out of the interest earned by it. There seems to be no justification for permitting a Company to keep money in fixed deposit and treat the interest accruing on it as extraneous income, while at the same time, permitting the Company to take loans pay interest and treat that interest as business expenditure. Consequently, in the case, when calculating the available surplus, a sum of Rs. 5.17 lacs minus Rs. 2.16 lacs Rs. 3.01 lacs only will be deducted as extraneous income which was earned without any contribution from the workmen and which cannot, therefore, be taken into account when calculating available surplus.43. On the basis of these decisions, we have worked out Charts showing the amount of annual rehabilitation provision which must be allowed to the Company and, taking that into account, the amount of surplus available out of the profits for distribution as bonus. Chart I shows the annual rehabilitation requirement for machinery which works out at Rs. 116.07 lacs. Chart II gives the calculation, on the basis of this figure of the net amount required for rehabilitation during the year of bonus for the machinery and buildings, after taking into account the depreciation provision for the year of bonus. This net amount is Rs 64.97 lacs. Chart III, based on these figures and on other figures arrived at by us in our judgment, shows that a net amount of Rs. 30.56 lacs would be available as surplus for payment of bonus during this year. The Tribunal was, therefore, not right in arriving at its decision that this Company was not in a position to pay bonus at all.44. As we have indicated earlier, the workmen have claimed bonus equivalent to 6 months wages which would amount to a sum of Rs. 24 lacs. We do not find any justification for granting bonus at such a high rate. Though the Company has earned a large amount of profit during the year of bonus, it is to be noticed that, for quite a large number of years, the Company has been running at a loss. The Company has an expanding business and the total amount of surplus available for allocation between the capital and the labour is Rs. 30.56 lacs. In all these circumstances, we consider it just and proper that bonus should be paid to the workmen at 20 per cent of their annual wages so that a total sum of Rs. 9.60 lacs out of this surplus will be paid out as bonus, leaving the balance of Rs. 21.03 lacs with the Company for being utilised for other purposes. | 1[ds]3. In this appeal also, there is no dispute that the principles to be applied for working out the surplus available for distribution of bonus must be those approved by this Court in the case of Associated Cement Companies Ltd., 1959 SCR 925 = (AIR 1959 SC 961)these items, the most controversial is the first item of rehabilitation and that is also the most material one, because, if the figure of annual rehabilitation arrived at by the Tribunal is accepted, it is clear that no surplus can possibly remain out of the profits earned during the year for distribution of bonus. In the calculation of rehabilitation, various factors are involved which have been indicated by this Court in the case of Associated Cement Companies, 1959 SCR 925 = (AIR 1959 SC 967 )seems that the Tribunal, in making this direction, was also influenced by the circumstance that under theLaw the depreciation allowed in respect of precision andmachinery is different from which the Tribunal inferred that precision machinery will have a shorter life thanmachinery. In fact, the Tribunal was of the view that the proportion between the life of precision andmachinery can be safely taken to be the same as the proportion between the depreciation allowed in respect of the two. Proceeding on this basis, the Tribunal, in the statements prepared for and annexed as part of the Award, classified the machinery into precision andmachinery and worked out different life for the two kinds of machinery. In the course of arguments before us, it was urged on behalf of the workmen that the Company not having claimed that machinery classified as precision had a shorter life than machinery classified aseither in the written statements or at the stage of filing the first Schedule IA or even the second or third Schedule 1 A, there was no justification for the Tribunal to accept this classification and worked out different periods of life for different classes ofboth parties before us challenge the adoption of this classification by the Tribunal we consider that it will be right to ignore this classification and to proceed on the basis that the total file of the machinery must be worked out on an average for all the machines installed in the factory of the Company without making any distinction between precision machinery andn our opinion, this argument proceeds on an entirely incorrect basis.The life of a machinery of one particular factory need not necessarily be the same as that of another factory. Various factors come in that affect the useful life of a machinery. There is first the consideration of the quality of machinery installed. If the machinery is purchased from a country producing higher quality of machines, it will naturally have longer life than the machinery purchased from another country where the quality of production is lower. Again, the articles on which the machinery operates may very markedly vary the life of a machine. If, for example, a machine is utilised for grinding of cement, the strain on the machine will necessarily not be the same as on a machine which operates on steel or iron.We are, therefore, unable to accept the suggestion that the life of the machinery in the present case should have been fixed on the basis of the life accepted in other cases in which decisions were given on bonus disputes either by the Labour Appellate Tribunal or by this Court.6. The Tribunal, in its decision, worked out the life of the machinery on the basis of the percentage of depreciation allowed under theAct. The application of this principle has been attacked before us by both the parties. It is urged that the artificial rule laid down in theAct for calculation of notional depreciation can provide no criterion at all for determining the life of the machinery. We think that the parties are correct and that the Tribunal committed an error in proceeding on this basis.7. Through, in the case of Secy., South India Millowners Association, 1962 Supp (2) SCR 926 = (AIR 1962 SC 1221 ) (supra), this Court, on the facts of that case, accepted the life of the textile machinery as 25 years, the Court also laid down the principle for finding out the life of machinery in the followingare not prepared to accept either argument because, in our opinion, the life of the machinery in every case has to be determined in the light of evidence adduced by the parties ." (p 938 of SCR) = (at p 1224 of AIR).Obviously, this is the correct principle, because it is only when the life of machinery is determined in the light of evidence adduced by the parties in a particular case that the authority determining the life can take into account all the factors applicable to the particular machinery in question. As we have indicated earlier, when determining the life of a machinery, factors, such as the quality of the material used in the machines and the nature of the material on which the machines are to operate, very materially affect their life. Further, the life of a machine will also depend on the manner in which it is handled in a particular factory.We consequently, in this case proceed to examine the evidence given by the parties in this behalf.8. In order to prove the life of machinery, one method usually adopted by the Companies is to tender evidence of experts. In the present case, the Company tendered in evidence the statement of an expert, Gerald Waplington, which was recorded earlier on 5th November, 1961 by the Fifth Industrial Tribunal in a dispute pending before it. That dispute was also between this very Company and its workmen. In giving the life of machinery, Waplington first classified the machines into twopurpose machine tools and special or single purpose machineexpressed the opinion that a general purpose machine tool used for one single operation is likely to have a shorter economic life than special or single purpose, machine tool. According to him, a general purpose machine carrying on work of high accuracy will have an economic life of the order of 2 to 3 years only, while a special purpose machine doing similar work of high accuracy working 400 hours a month will have an economic life of 5 to 6 years. If the work taken from the machines is of less accuracy, then, in his opinion, a general purpose machine may have an economic life up to 5 years and a special purpose machine an economic life of 7 to 10 years. In his evidence, further, he made a distinction between economic life and useful life. He twice stated that economic life of a machine would be only 1/3 of the useful life of the machine so that if, on the basis of his evidence, the useful life of various classes of machines mentioned by him is to be worked out, the number of years given for each class by him above will have to be multiplied by 3 Thus, according to his evidence, the economic life of a machine will vary from 2 to 3 years as a minimum to 7 to 10 years at the maximum, and working out the useful life on the basis of his statement that economic life is only 1/3rd is of the useful life, the machines would have a minimum of 6 to 9 years and a maximum of 21 to 30 years useful life. We shall consider what inferences can be drawn from his statement at a later stage when we have discussed the other evidence available in this case. It may, however, be noted that Waplington is the only expert who can be held to be entirely disinterested, because the other two experts examined are employed as Engineers by the Company itself. This independent witness, Waplington, was not askedhad seen the various machines in the factory of the Company, nor was he at any time requested to indicate how many different machines in the factory of the company would fall. In the various classifications mentioned by him for which he has given different periods in respect of economic life.9. The other two witnesses examined are Joseph Joyce, General Master Mechanic, and Girish Chandra Bansal, Master Mechanic, employed by the Company. Both of them have, in their statements, given out their qualifications and experience which they have in dealing with automobile manufacturing machinery. According to Joyce, the economic life of the machinery of the Company cannot go beyond 6 years, and this statement was made on the basis of the machines working 16 hours a day in two shifts of 8 hours each. Later on, he added that, applying American standard, the life of the machines can only be 6 to 10 years. In giving the life, he qualified that word with economic" or "economic useful", so that he equated economic life with economic useful life gave the figures on this basis. Inhe, however, admitted that useful life of a machine is longer than its economic life. Thus, if various statements of his are taken into account, and it is kept in view that he is an employee of the Company, it may be accepted that, according to him the maximum economic life of the machinery of the Company will be between 6 to 10 years and the useful life will be longer: how much longer, he has not indicated. If we were to assume that he is using the expressions "economic life" and "useful life" in the same sense in which they were used by Waplington, economic life would be 1/3rd of the useful life, with the result that, on his evidence, useful life of the machinery of the Company would work out to be anywhere between 18 to 30 years. The third witness, Girish Chandra Bansal, estimated the efficient economic life, based on 16 hours per day working, at 6 to 10 years which coincides with the estimate by Joyce. In his case, however, no questions were put to elicit from him whether he would make any distinction between efficient economic life and useful life, so that his evidence does not appear to carry us any farther than the evidence of Joyce.10. It may be added that both these witnesses in their evidence stated that the workmen employed by the Company were not very skilled workers and this was a factor that had to be taken into account in considering the life of the machines in this Company. It is obvious that, if a machine is handled by a more skilful worker, it will last longer and have a longer life. A statement was also made by Joyce that machines running at high speed will have shorter life than those running at lower speeds; but this general statement made by him offers no assistance to us in this case, because he has not indicated in his evidence how many and which of the machines of the Company run at high speed and which at lowerhas already been mentioned earlier that in the second report of the Tarrif Commission in 1956 it was clearly stated that this Company was selling cars at a loss of Rs. 833 per car. It is in this background that the evidence given by the Company could be judged to find out what is the life of the machinery possessed by the Company. He also drew our attention to the principles laid down in this connection by the Full Bench of the Labour Appellate Tribunal in the Millowners Associations case,Lab LJ 1247 (supra), and by this Court in the Associated Cement Companies case 1959 SCR 925 = (AIR 1959 SC 967 ) (supra). In the former case, when laying down the principle that provision should be made for rehabilitation, replacement and modernization of the machinery the Tribunal held that :"It is essential that the plant and machinery should be kept continuously in good working order for the purpose of ensuring good return and such maintenance of plant and machinery would also be to the advantage of labour for the better the machinery, the larger the earnings, and the better the chance of securing a good bonus."In the latter case, this Court, when examining the scope of claim for rehabilitation held that :"this claim covers not only cases of replacement pure and simple but of rehabilitation and modernisation. In the context, rehabilitation is distinguished from ordinary repairs which go into the working expenses of the industry. It is also distinguished from replacement. It is quite conceivable that certain parts of machines which constitute a block may need rehabilitation though the block itself can carry on for a number of years: and this process of rehabilitation is in a sense a continual process. Unlike replacement, its date cannot always be fixed or anticipated. So with modernisation; and all these three items are included in the claim for rehabilitation. That is why we think it is necessary that the Tribunals should exercise their discretion in admitting all relevant evidence which would enable them to determine this vexed question satisfactorily." Proceeding further to distinguish between cases of replacement, modernisation and expansion the Court held :"It appears fairly on the evidence that the introduction of the modern plant or machine is in substance an item of expansion of the industry expenses incurred in that behalf have to be excluded. On the other hand, if the employer had to introduce the new plant essentially because the use of the oldcapable of giving service was uneconomic and otherwise wholly inexpedient, it may be a case of modernisation. Similarly, if by the introduction of a modern plant or machine the production capacity of the industry has appreciably increased, it would be relevant for the Tribunal to consider in an appropriate case whether it would be possible to apportion expenses on the basis that it is a case of partial modernization and partial expansion."It will thus be seen that when considering the question of rehabilitation, what is essentially to be taken into account is that the old plant, though capable of giving service, was uneconomic and otherwise wholly inexpedient when provision for its replacement and rehabilitation, even though it will include modernization, would be fully justified.12. In this context. it may be worthwhile examining at this stage the difference between economic life and useful life on which emphasis has been laid by Mr. Sen on behalf of the workmen. We have already indicated earlier that even the expert examined on behalf of the Company. Gerald Waplington, made a distinction between economic life of machinery and its useful life. Further, in giving the life, he applied American standards which may not be applicable in India. This Court, in various cases where the question of rehabilitation has been discussed, has laid emphasis on useful life rather than on economic life and, even in. the Associated Cement Companies case, 1959 SCR 925 = (AIR 1959 SC 967 ) (supra) in the extract quoted above, the Court held that modernisation is justified when the use of the old plant becomes uneconomic and otherwise wholly inexpedient. Thus, two tests were laid down, first, that it should be uneconomic and, second, that it should be also otherwise wholly inexpedient.The economic life as envisaged by Waplington, was not, therefore considered the appropriate test for determining when rehabilitation of the plant and machinery would be justified. In fact, one of the very major considerations that should he taken into account is the actual practice of the manufacturers using the machinery and, if evidence be available to find out how long the manufacturers continue to use the machinery as a rule.It may be that during the last few years of use, the machinery may be continued to be utilised because of want of resources and compulsion to retain the machinery because replacement is not possible at all. It is in the light of this situation that we proceed to examine the evidence given by the Company about the behaviour of its machinery and the steps taken by the Company to have the old machineryis to be noticed that, though 40 different machines were discarded by 26th October, 1962 when this statement was prepared, none of the machinery discarded was that installed up to the yearIn fact this situation is also borne out by the three Scheduleswhich have been referred to earlier by us. In those Schedulesthe machinery discarded and written off from books is shown as being worth Rs. 35,000 out of machinery of the value of Rs. 89.75 lacs installed in the yearThus, the machinery of that year discarded was nominal in value. None of the machinery installed between the years52 was discarded. Again a machinery installed inwas discarded to the extent of the nominal value of Rs. 39,000 out of Rs. 11.06 lacs, and no machinery installed inwas discarded. The machinery discarded was primarily that installer in the Years58 and its value was in the region of Rs. 46 lacs. Thus, right up to 1962, the old machinery purchased up to the year 1934 was almost all continued in use and was not discarded, even though machinery installed in the next four years was considered unfit for further use and was discarded or writtenlist contains more than 200 machines, but again, the machines installed during the yearor earlier included in it are only 5 in number, whereas the majority of machines included in that list are those installed in later years. Significance attaches to this factor because the machines installed in the yearwere of very large value, their cost being in excess of Rs. 89 lakhs. In fact that is the year in which the investment on installation of machinery was highest, barring the year of bonus and the year immediately preceding it. This statement thus shows that even though the Company wanted replacement of a number of machines which had been installed even in the yearand some machines installed in later years, the replacement of those machines was given preference over the replacement of machines installed earlier in the yearIn this statement, in the remarks column, it was mentioned that these machines are to be scrapped, but there was no statement that machines which had been installed in the year 194748 were also in such a condition that they required scrapping. Thus, these statements provide some indication of the life of machinery which point both ways. The fact that old machinery ofthough of large value, was not considered to be in such a condition as to require immediate replacement in preference to machinery installed later would point towards that machinery leaving a fairly long life. On the other hand, there is the factor that machinery installed in later years was actually scrapped or was sought to be scrapped, and this necessarily means that that later machinery was considered as having shorterstatement has the significance that though in the past two years the Company took the step of purchasing machines which would perform the identical functions which the old machines were performing the Company chose to add these machines as new ones as a part of its scheme of expansion rather than replace those old machines. In the yeartherefore the Company was still of the opinion that it was preferable to add a new machine of the same type rather than replace an old machine doing, the same work, and an inference would necessarily follow that that old machine must have been considered to be sufficiently serviceable. This is the view that the Company appears to have held in respect of machinery which was installed 14 or 15 yearsis true that, if there are very frequentin machinery, this would give an indication of the condition of the machinery and lead to the inference that their useful life is coming to an end. There is, however, one great difficulty in drawing any conclusion from the statistics of number ofof the machinery put forward on behalf of the Company. The Company has, no doubt, shown us statements that a number of machines hadduring the last few years preceding the year of bonus but no material was brought to our notice from which it might have been possible to compare how the same machinery was behaving in earlier years or within the first few years after it was installed. Unless it be possible to compare the number of breakdowns when their life is claimed to be over with the number ofbreakdowns when themachine was almost new or was running its economic or useful life, no assistance is available for assessing the life of the machinery from a mere table showing the number ofFurther, it was not possible from these statements to find out which of the machines installed in which year were subject to thenor did these statements give us any picture about the percentage of machines installed in different years which were included in these statements. Consequently, we have felt handicapped in drawing any inference from theseis true that the statement given of increase of rated time gives some indication that the condition of the machinery in this factory has been going down and though this factor is relevant in determining the useful life of machinery it cannot carry us very far, because there is no evidence which would enable us to lay down a correlation between the increase in the rated time and the expiry of the useful life of the machinery. It is not possible on the evidence to discover how much the rated time is expected to increase before it can be said that the machinery has completely run out its usefulis, no doubt, another aspect that must be taken into account, though we are unable to accept the submission that a machinery should be deemed to have useful life until it reaches the stage of having abreakdown value of 5 perNo such absolute rule can be inferred.20. In this case, the Tribunal, in fixing the life of the machinery, as we have mentioned earlier, proceeded to calculate it on the basis of the depreciation rate permitted under theAct. That basis was not acceptable to either of the parties before us.In these circumstances, we have to consider the cumulative effect of the various pieces of evidence and circumstances which we have discussed above and. on its basis to estimate what should be considered to be the useful life of the machinery of this Company. Reference may briefly be made to the various conclusions arrived at. The evidence of the independent expert and of the engineer employees of the Company gives a figure for useful life of machinery which may be anywhere between 6 years to 30 years. The lower figures given by them cannot be accepted as they relate to economic life in the strict sense of that expression and are based on American standards. At the same time, the maximum life worked out from their evidence is on the hypothesis that the useful life stated by Waplington to be three times that of economic life is also the useful life in the same proportion to economic life as given in the evidence of Joyce. Then, there is the evidence that this Company itself has been running its old machinery for quite a large number of years and even after 13 or 14 years of use, the Company in quite a large number of cases preferred, when buying similar machines, to utilise them for expansion rather than for rehabilitation. On the face of it, replacement of old machinery would have been preferred to expansion if the old machinery had really completed its useful life. In some cases, however, machinery purchased in later years had to be rehabilitated after much shorter periods but no detailed information is available why such early replacement became necessary. No material was provided to show the comparative quality of machines which have been run for a long time and machines which were replaced or sought to be replaced after shorter periods of use. After taking into consideration the various factors mentioned by us above, and on the evidence before us, we think that, in this case, it would be appropriate to hold that the average life of the machinery of this Company in respect of different kinds of machines obtained from different sources may be appropriately taken as 15 years. This life of 15 years arrived at by us, it may be mentioned is on the basis that the machines of the Company have been running during most of the period, to which the evidence relates in two shifts only. Girish Chandra Bansal one of the Engineers of the Company, examined as a witness, stated that the machines in this Company were working in two shifts only, until for the first time inthe factory started to runi.e., in three shifts. He added that the factory had been working in two shifts from the time it was founded. It is also clear that, if the factory had been working in only one shift, the life of the machinery would have been longer, and we think that in that case it would have been appropriate to take the life of the machinery as 25 years. On the other hand, after the machines are being worked in three shifts, the life of the machinery is bound to be lower and, consequently if the machines be worked in three shifts, it would be appropriate to take the life of the machinery at 10 years. In the present case, however, we are accepting the average life as 15 years for all the machines requiring rehabilitation, because the evidence, as mentioned above shows that the machines have been working in two shifts only from the time when the factory started functioning, with the exception that, in the first few years they were worked in only one shift, while, from the year preceding the year of bonus, they have been worked in three shifts. Consequently, it may be taken that, up to the year of bonus, the machines have been worked on the average, in two shifts. In working out the divisor, however, it will. have to be kept in view that the future life of the machinery will have to be calculated on the basis of three shifts and, consequently, on the basis of the figure of 10 years as the useful life of the machinery. We may also incidentally mention that this Court, in the case of National Engineering Industries Ltd. v. The Workmen, Civil Appeals Nos. 356 , 357 of 1966, D/= (AIR 1968 SC 538 ) accepted the life of the precision machinery of the Company concerned in that case as 15 years, so that the conclusion arrived at by us on the evidence in the present case happens to coincide with the figure of life accepted in thatthink that Mr. De is right in urging that, if any machinery is installed in bonus year, the Company would be justified in claiming that it must immediately start making provision for its rehabilitation, though the period for rehabilitation of that machinery would only start at the end of the bonus year.Once machinery has been installed and is in existence in the bonus year, the Company is entitled to say that it will require rehabilitation in future and that provision should be made for rehabilitation of that machinery also and the Company should start keeping reserves for that purpose from the year of bonus itself.Thus, in the present case, the machinery installed in the yearshould have been included in the rehabilitation statement, though the divisor in respect of that machinery will, on our decision given above, be 15 on the basis of two shifts and 10 on the basis of three shifts as the machines will still have a residuary life of 15 or 10 years, computing the period from the bonus year which is also the year of installation.23. The second factor entering the calculation, of rehabilitation requirement about which there was controversy between the parties is the multiplier. We have already mentioned the fact that, in the first and the third Schedulesthe Company gave one set of multipliers, while in the second Schedulehigher multipliers were given. The Tribunal took both sets of multipliers into account and worked out the average and accepted that as the correct multiplier, representing the rise in the price rate of the machinery requiring rehabilitation. Thereafter, the Tribunal held that the machinery which was to replace the old one would have a larger production and proceeded to work out figures for reducing the multipliers on that account. The Tribunal held that it would he justified to reduce the average multipliers arrived at by .75 for machinery installed up toby 55 for machinery installed during the years6, and by .35 for that installed during the years1. Before us, this method adopted by the Tribunal was criticised by counsel for both parties. On behalf of the workmen, it was contended that there was no justification for the Tribunal to take the average of the multipliers in the first and the second Schedulesand that the Tribunal should only have proceeded on the basis that the multipliers given in the first Schedulewere proved and were correct ones. On behalf of the Company, it vas urged that the Tribunal should have accepted the multipliers given in the second Scheduleand should not have reduced them by taking into account those given in the first Scheduleand, further, that there was no justification at all for the Tribunal to reduce the figures of the multipliers for the various blocks of machinery by .75, .55 or .35 on the ground that the machinery to be installed in replacement would have a higher production.24. We were taken by learned counsel for parties into the evidence tendered on behalf of the Company to prove the multipliers. We have found that the correctness of the multipliers shown in the first Schedulehas been very satisfactorily proved. It appears that those figures were arrived at by comparing the prices of the old machinery installed in various years with similar machinery purchased in subsequent years. That comparison was contained in statement Ext. 29. The Company s witness Bansal not only proved this statement, but also clearly stated that the machines originally purchased and those purchased later shown in that statement Ext. 29 were the same machines. Inhe further specifically asserted that the production capacity of these new machines mentioned in Ext. 29 was very much the same as that of the original machines which were to be replaced when they were new. It is also significant that these figures of multipliers included in the first Schedulewere not challenged on behalf of the workmen before the Tribunal. So far as the figures contained in the second Scheduleare concerned, it was suggested on behalf of the Company that they were based on subsequent quotations received for replacement machinery which formed part of a series Ext. 31. Learned counsel for the Company was, however, unable to point out any statement in the evidence of any witness which would show that the figures for multipliers incorporated in the secondwere actually calculated from the quotations contained in Ext. 31. In fact, no such evidence was possible, because the second Schedule1A was filedon behalf of the Company after the evidence of parties was over and that seconds Schedulenot being a part of the record before the Tribunal when evidence was recorded, it was not possible for any witness to give evidence proving those figures for multipliers. In these circumstances, we must hold that the Tribunal committed an error in taking into account the multipliers given in the second ScheduleAt the same time, we must also accept the contention on behalf of the Company that the Tribunal had no justification for reducing the multipliers by deducting 75, 55 and 35 in respect of the three blocks of machinery sought to be replaced. As we have indicated earlier, the Tribunal proceeded to hold that this deduction was justified on the ground that the new machines which had been purchased and which were being compared with the original machines sought to be replaced must necessarily have more productive capacity. We have not been able to find any evidence on the record of any witness which would support this conclusion. It is true that the statements made by Companys witnesses, particularly Bansal, show that the new machines were more efficient and were likely to produce better quality goods. At no stage, however, in theof Bansal was any statement made admitting that these new machines, whose prices were being compared with those of the old machines for rehabilitation, had a larger productive capacity than those original machines. In fact, as we have pointed out earlier, in hisBansal made a definite statement that these new machines will produce exactly the same number of pieces as the original machines when they were new. This Court in the case of the Associated Cement Companies Ltd., 1959 SCR 925 = (AIR 1959 SC 967 ) (supra) had indicated that it is only if, by the introduction of a modern plant or machine, the production capacity of the industry has appreciably increased that it would be relevant for the Tribunal to consider in an appropriate case whether it would be possible to apportion expenses on the basis that it is a case of partial modernisation and partial expansion. If, however, the increased production is not of a significant order, it may be regarded as incidental to replacement or modernisation and the question of apportionment may not arise (at p. 969 of SCR) = (at p 990 of AIR). It is, of course, possible that Bansal, in stating that the new machines the prices of which formed the basis of calculation of multipliers, have exactly the same capacity as the original machines to be replaced, may not he quite correct but there was no material at all from which the Tribunal could have justifiably inferred that the increase in production would he so material as to attract the principle for apportionment laid down by this Court in the case cited above and, consequently the Tribunal fell in to an error in reducing the multipliers merely on the assumption that the new machine must necessarily have a larger production capacity than the original machines. In these circumstances, we hold that the rehabilitation provision should have been calculated by the Tribunal on the basis of the multipliers given by the Company in the first Schedulewithout taking an average of those multipliers and the multipliers given in the second Scheduleand without decreasing the multipliers by 75, 55 and 35 in respect of various blocks.26. The third contested question with regard to rehabilitation relates to the deductions which have to be made out of the total rehabilitation requirement to arrive at the annual provision for that purpose which must be allowed in working out the available surplus for distribution of bonus. In the Associated Cement Companies Ltd. case, 1959 SCR 925 = (AIR 1959 SC 967 ) (supra), when approving the Full Bench Formula this Court indicated how the calculations should be made. It was heldactually awarding an appropriate amount in respect of rehabilitation for the bonus year certain deductions have to be made. The first deduction is made on account of thebreakdown value ofthe plant and machinery which is usually calculated al the rate of 5 per cent of the cost price of the block in question. Then the depreciation and general liquid reserves available to the employer are deducted. The reserves which have already been reasonably earmarked for specific purposes of the industry are, however, not taken into account in this connection. Last of all the rehabilitation amount which may have been allowed to the employer in previous years would also have to be deducted if it appear, that the amount was available at the time when it was awarded in the past and that it had not been used for rehabilitation purposes in the meanwhile. These are the broad features of the steps which have to be taken in deciding the employers claim for rehabilitation under the working of the formula." (at p. 970 of SCR) = (at p. 991 of AIR).The dispute in the present case relates to the deduction of the depreciation and general liquid reserves. One aspect in controversy in this behalf raised on behalf of the Company is that even depreciation should not be deducted unless it is available to the employer for purposes of rehabilitation. The argument was that in the sentence Then the depreciation and general liquid reserves available to the employer are deducted" the word "depreciation" should he read with the words "reserves available to the employer" and, consequently, the deduction should only be made of depreciation reserves available to the employer. We are unable to accept this submission, because the very principle on which rehabilitation provision is allowed when making calculations for awarding bonus militates against this interpretation. This Court, in the same case. in explaining why rehabilitation is granted, held:"We have already noticed that the object of providing depreciation of wasting assets in commercial accounting is to recoup the original capital invested in the purchase of such assets: but the amount of depreciation which is allowed under the formula tan hardly cover the probable cost of replacement. That is why the formula has recognised the industrys claim for rehabilitation in addition to the admissible depreciation." (at p. 966 of SCR) = (at p. 989 of AIR).It will thus be seen that the purpose of providing for rehabilitation charges is to enable the industry to cover the difference between the amount of depreciation which is recouped by making provision for it in accordance with the principles of commercial accounting and the amount that would he required to purchase the new machinery for replacement. Once the price of the new machinery is known, the rehabilitation amount would be the difference between that price and the amount provided as depreciation of wasting assets in accordance with the principles of commercial accounting. The deduction of depreciation provision made in the accounts is not, therefore, on the basis that that amount must be available for purchasing the replacement machinery even in the year when provision for rehabilitation is being made. That amount is deducted from the price of the machinery which will be required to be purchased in order to determine what amount the industry is going to require for rehabilitation in spite of having been allowed depreciation. In our view, therefore this Court, when it later held that the depreciation and general liquid reserves available are to be deducted in calculating the rehabilitation amount did not intend to lay down that the depreciation must also be available in the year of bonus.The words available to the employer" were intended to qualify the expression "general liquid reserves" only and not the word "depreciation". General liquid reserves are to he deducted on the principle that if such reserves are in the hands of the industry and are not earmarked for binding purposes, the industry must utilise those reserves for rehabilitating the old machinery instead of asking for provision to be made out of profits in the year of bonus and in future years. The principle adopted is that provision for rehabilitation is to be made only to the extent of the difference between the price of the machinery which will have to be paid for replacing the odd machinery and the amount of depreciation provision shown in the accounts according to the commercial system of accounting and even that rehabilitation requirement must first be met by the industry out of available liquid reserves rather than by asking for provision to be made out of profits. In the present case, the Tribunal, when calculating the provision for rehabilitation, took the entire price of the replacement machinery as required to be provided out of profits and did not take into account that that price should have been reduced to the extent of the depreciation provided for in the accounts. The annual report of this Company for the year of bonuswas produced before us and at page 24 it showed that at the beginning of the yeardepreciation to the extent of Rs. 325.48 lacs had been provided in theof the Company. This amount has, therefore, to he deducted from the price of the machinery which is to replace the original machinery when rehabilitation is resortedet of the Company contained in the Annual Report, various kinds of reserves have been shown. There was a reserve for contingencies to the extent of Rs. 10.00 lacs onand a development rebate reserve of Rs. 39.51 lacs on the same date. On behalf of the workmen, it was urged that this amount of Rs. 39.51 lacs should at least be deducted when calculating the requirement for rehabilitation. From theitself an inference was sought to be drawn that this reserve existed in the form of a liquid reserve available for rehabilitation. For this purpose reference was made to the entries on the assets side of thewhich shows a sum of Rs. 220 lacs as lying in fixed deposit account. The argument was that if the Company had such a large sum as Rs. 220 lacs in the fixed deposit account, it could not possibly urge that the sum of Rs. 39.51 lacs in respect of development rebate reserve was not a part of it and was not available as a liquid reserve. It is but natural that in thethe Company could not show any correlation between the amounts entered on the two sides, liabilities and assets, as that is not required by any principle of commercial accounting. The argument of learned counsel for thethat this development rebate reserve had been used as a part of the working capital of the Company represented by various items shown on the assets side and this fact was proved by the affidavit of Satya Narayan Murarka, Commercial Manager of the Company, who categorically stated that all the reserves had been utilised as part of the working capital. It seems to us that a mere statement by the Commercial Manager that the reserves have been utilised in the working capital cannot be accepted as conclusive evidence of that fact. When theitself shows that cash amounts in the form of fixed deposits were available which were far in excess of the development rebate reserve in question, there would be no justification for holding that this development rebate reserve was not available as a liquid asset and had been included by the Company in its working capital. At this stage, it is not necessary; therefore, to go into any further details to arrive at the conclusion that this development rebate reserve was a liquid asset available for rehabilitation and, consequently, liable to be deducted when calculating the rehabilitation requirement. We shall deal in greater detail with the question of what items were included in the working capital at a later stage when dealing with the controversy relating to the claim of the Company for return on working capital which is allowed under the Full Bench Formula, when calculating the surplus available for distribution of bonus.28.On the question of calculation for provision for rehabilitation the only point raised on behalf of the workmen with regard to buildings was that the Tribunal, in taking the life of the factory buildings at 25 years andbuildings at 40 years, was not correct and that the life of the two types of buildings should have been taken at 40 years and 50 years respectively.At the time of the hearing before the Tribunal, the Company had claimed that factory buildings have a normal life of 25 years only andbuildings 30 years, while the claim of the workmen was that the factory buildings had a life of 40 years and thebuildings 50 years.In arriving at its decision, the Tribunal primarily took into account the provisions of Rule 8 of the Rules framed under theAct, 1922 which lays down the principle for calculation of depreciation in respect of buildings. That principle, no doubt, cannot be taken as giving any correct indication of the life of buildings for purposes of calculation of rehabilitation provision, but, in this case, there was the difficulty that the Tribunal did not accept the evidence given by the Company to prove the age of the buildings as claimed by it, while no evidence was given on behalf of the workmen in support of their claim that the life of the buildings should be taken at the figures contended on their behalf. In the course of arguments before us, all that learned counsel did was to refer to the decision of this Court in the Associated Cement Companies Ltd. case, 1959 SCR 925 = (AIR 1959 SC 967 ) (supra) at p. 993 (of SCR) = (at p. 1001 of AIR) where the calculations made in the Chart show that the life of the various buildings concerned in that case were taken to be between 30 and 35 years. We do not think that in the absence of evidence showing that the buildings of the Company were similar to those buildings whose life came up for consideration in the case cited above, it is possible to derive any assistance from the figures accepted in that case. In these circumstances, the position before us is that neither on behalf of the Company, nor on behalf of the workmen is there any reliable evidence brought to our notice on the basis of which we can arrive at a correct estimate of the life of the buildings of the Company and consequently, we do not think that there will be any justification for US to vary the decision given by the Tribunal in this | 1 | 18,812 | 8,255 | ### Instruction:
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of Rs. 14.48 lacs of investment came out of the paid-up capital. Consequently, no question can arise of reducing this amount from the paid-up capital when allowing 6 per cent return on it in accordance with the Full Bench Formula.41. Another deduction, while calculating the surplus out of the profits available for distribution of bonus, which has been challenged on behalf of the workmen relates to the income from home delivery commission. From the facts it appears that this Company was manufacturing cars in collaboration with a foreign concern and the arrangement was that, if that foreign concern sold any of its goods in India, the Company would be entitled to its commission on those even though the Company may not be a party to the transactions of those sales. This arrangement thus recognised the exclusive right of the Company in respect of sale of its cars and to reimbursement in case the foreign collaborator entered into transactions infringing that right. It seems to us that the income thus accruing to the Company has to be treated as extraneous income which was earned by the Company without any activities in which the workmen participated or contributed their labour. Learned counsel for the workmen referred us to the decisions of this Court in Tata Oil Mills Co. Ltd., (1960) 1 SCR 1 = (AIR 1959 SC 1065 ) (supra) and Voltas Limited v. Its Workmen, (1961) 3 SCR 167 = (AIR 1881 SC 941). The situations that were discussed in those cases were different. In those cases, the principle laid down was that, if any income was earned in the course of the normal business of the Company in which the workmen were also engaged that income must be included in the profits for calculation of surplus available for distribution of bonus. None of the instances that came up for consideration were similar to the one before us.The home delivery commission earned in the present case did not require any contribution of work or labour on the part of the workmen, and accrued to the Company simply because of its agreement with the foreign collaborator which entitled the Company to claim the commission without going through any process of manufacturing or selling the cars or their components. In the circumstances, the deduction of the home delivery commission from the profits was fully justified.42. The last point urged related to the interest on fixed deposits earned by the Company during the bonus year. We have already indicated earlier that a sum of Rs. 220 lacs was in fixed deposit account and the profit and loss account shows that a sum of Rs. 5.17 lacs was received as interest on it by the Company. This has also to be excluded when calculating the available surplus, because this income also accrued to the Company without any contribution on the part of the workmen. It was not the regular business of the Company to keep money in fixed deposits and earn interest thereon. At the same time, how ever, we feel that on equitable grounds, the Company should not be entitled to claim the sum of Rs. 2.16 lacs as an expenditure of the business of the Company in respect of interest paid to bank and others. When the Company was receiving interest on fixed deposits, it would he proper to hold that at least the interest paid by the Company should come out of the interest earned by it. There seems to be no justification for permitting a Company to keep money in fixed deposit and treat the interest accruing on it as extraneous income, while at the same time, permitting the Company to take loans pay interest and treat that interest as business expenditure. Consequently, in the case, when calculating the available surplus, a sum of Rs. 5.17 lacs minus Rs. 2.16 lacs Rs. 3.01 lacs only will be deducted as extraneous income which was earned without any contribution from the workmen and which cannot, therefore, be taken into account when calculating available surplus.43. On the basis of these decisions, we have worked out Charts showing the amount of annual rehabilitation provision which must be allowed to the Company and, taking that into account, the amount of surplus available out of the profits for distribution as bonus. Chart I shows the annual rehabilitation requirement for machinery which works out at Rs. 116.07 lacs. Chart II gives the calculation, on the basis of this figure of the net amount required for rehabilitation during the year of bonus for the machinery and buildings, after taking into account the depreciation provision for the year of bonus. This net amount is Rs 64.97 lacs. Chart III, based on these figures and on other figures arrived at by us in our judgment, shows that a net amount of Rs. 30.56 lacs would be available as surplus for payment of bonus during this year. The Tribunal was, therefore, not right in arriving at its decision that this Company was not in a position to pay bonus at all.44. As we have indicated earlier, the workmen have claimed bonus equivalent to 6 months wages which would amount to a sum of Rs. 24 lacs. We do not find any justification for granting bonus at such a high rate. Though the Company has earned a large amount of profit during the year of bonus, it is to be noticed that, for quite a large number of years, the Company has been running at a loss. The Company has an expanding business and the total amount of surplus available for allocation between the capital and the labour is Rs. 30.56 lacs. In all these circumstances, we consider it just and proper that bonus should be paid to the workmen at 20 per cent of their annual wages so that a total sum of Rs. 9.60 lacs out of this surplus will be paid out as bonus, leaving the balance of Rs. 21.03 lacs with the Company for being utilised for other purposes.
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the provision for rehabilitation, took the entire price of the replacement machinery as required to be provided out of profits and did not take into account that that price should have been reduced to the extent of the depreciation provided for in the accounts. The annual report of this Company for the year of bonuswas produced before us and at page 24 it showed that at the beginning of the yeardepreciation to the extent of Rs. 325.48 lacs had been provided in theof the Company. This amount has, therefore, to he deducted from the price of the machinery which is to replace the original machinery when rehabilitation is resortedet of the Company contained in the Annual Report, various kinds of reserves have been shown. There was a reserve for contingencies to the extent of Rs. 10.00 lacs onand a development rebate reserve of Rs. 39.51 lacs on the same date. On behalf of the workmen, it was urged that this amount of Rs. 39.51 lacs should at least be deducted when calculating the requirement for rehabilitation. From theitself an inference was sought to be drawn that this reserve existed in the form of a liquid reserve available for rehabilitation. For this purpose reference was made to the entries on the assets side of thewhich shows a sum of Rs. 220 lacs as lying in fixed deposit account. The argument was that if the Company had such a large sum as Rs. 220 lacs in the fixed deposit account, it could not possibly urge that the sum of Rs. 39.51 lacs in respect of development rebate reserve was not a part of it and was not available as a liquid reserve. It is but natural that in thethe Company could not show any correlation between the amounts entered on the two sides, liabilities and assets, as that is not required by any principle of commercial accounting. The argument of learned counsel for thethat this development rebate reserve had been used as a part of the working capital of the Company represented by various items shown on the assets side and this fact was proved by the affidavit of Satya Narayan Murarka, Commercial Manager of the Company, who categorically stated that all the reserves had been utilised as part of the working capital. It seems to us that a mere statement by the Commercial Manager that the reserves have been utilised in the working capital cannot be accepted as conclusive evidence of that fact. When theitself shows that cash amounts in the form of fixed deposits were available which were far in excess of the development rebate reserve in question, there would be no justification for holding that this development rebate reserve was not available as a liquid asset and had been included by the Company in its working capital. At this stage, it is not necessary; therefore, to go into any further details to arrive at the conclusion that this development rebate reserve was a liquid asset available for rehabilitation and, consequently, liable to be deducted when calculating the rehabilitation requirement. We shall deal in greater detail with the question of what items were included in the working capital at a later stage when dealing with the controversy relating to the claim of the Company for return on working capital which is allowed under the Full Bench Formula, when calculating the surplus available for distribution of bonus.28.On the question of calculation for provision for rehabilitation the only point raised on behalf of the workmen with regard to buildings was that the Tribunal, in taking the life of the factory buildings at 25 years andbuildings at 40 years, was not correct and that the life of the two types of buildings should have been taken at 40 years and 50 years respectively.At the time of the hearing before the Tribunal, the Company had claimed that factory buildings have a normal life of 25 years only andbuildings 30 years, while the claim of the workmen was that the factory buildings had a life of 40 years and thebuildings 50 years.In arriving at its decision, the Tribunal primarily took into account the provisions of Rule 8 of the Rules framed under theAct, 1922 which lays down the principle for calculation of depreciation in respect of buildings. That principle, no doubt, cannot be taken as giving any correct indication of the life of buildings for purposes of calculation of rehabilitation provision, but, in this case, there was the difficulty that the Tribunal did not accept the evidence given by the Company to prove the age of the buildings as claimed by it, while no evidence was given on behalf of the workmen in support of their claim that the life of the buildings should be taken at the figures contended on their behalf. In the course of arguments before us, all that learned counsel did was to refer to the decision of this Court in the Associated Cement Companies Ltd. case, 1959 SCR 925 = (AIR 1959 SC 967 ) (supra) at p. 993 (of SCR) = (at p. 1001 of AIR) where the calculations made in the Chart show that the life of the various buildings concerned in that case were taken to be between 30 and 35 years. We do not think that in the absence of evidence showing that the buildings of the Company were similar to those buildings whose life came up for consideration in the case cited above, it is possible to derive any assistance from the figures accepted in that case. In these circumstances, the position before us is that neither on behalf of the Company, nor on behalf of the workmen is there any reliable evidence brought to our notice on the basis of which we can arrive at a correct estimate of the life of the buildings of the Company and consequently, we do not think that there will be any justification for US to vary the decision given by the Tribunal in this
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Nagappa Vs. Gurudayal Singh | such medical treatment, Court has to arrive at a reasonable estimate on the basis of the evidence brought on record. In the present case, it has been pointed out that for replacing the artificial leg every two to three years, appellant would be required to have some sort of operation and also change the artificial leg. At that time, the estimated expenses for this were Rs. 18000/- and the High Court has awarded the said amount. For change of artificial leg every two or three years no compensation is awarded. Considering this aspect, if Rs. One lac is awarded as an additional compensation, appellant would be in a position to meet the said expenses from the interest of the said amount. Equally, it is true that the said amount is required to be properly invested on long-term basis so that recurring medical expenses could be met. This principle is established in General Manager, Kerala State Road Transport Corporation, Trivandrum vs. Susamma Thomas (Mrs.) and others (1994) 2 SCC 176 ) and this Court held (in para 23) thus:- "23. In a case of compensation for death it is appropriate that the Tribunals do keep in mind the principles enunciated by this Court in Union Carbide Corpn. vs. Union of India (1991) 4 SCC 584 ) in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptibility to exploitation. In that case approving the judgment of the Gujarat High Court in Muljibhai Ajarambhai Harijan vs. United India Insurance Co. Ltd. (1982) 1 Guj. LR 756), this Court offered the following guidelines:-(i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor be invested in long term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn;(ii) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in (i) above, but if lump sum payment is required for effecting purchases of any movable or immovable property such as, agricultural implements, rickshaw, etc. to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money;(iii) In the case of semi-literate persons the Tribunal should ordinarily resort to the procedure set out at (i) above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expending and existing business or for purchasing some property as mentioned in (ii) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid;(iv) In the case of literate persons also the Tribunal may resort to the procedure indicated in (i) above, subject to the relaxation set out in (ii) and (iii) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to do order;(v) In the case of widows the Claims Tribunal should invariably follow the procedure set out in (i) above;(vi) In personal injury cases if further treatment is necessary the Claims Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment;(vii) In all cases which in vestment in long term fixed deposits in made in should be on condition that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount invested in paid monthly directly to the claimant or his guardian, as the case may be;(viii) In all cases Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency. To meet with such a contingency, if the amount awarded is substantial, the Claims Tribunal may invest it in more than one Fixed Deposit so that if need be one such F.D.R. can be liquidated". 28. Further, in Lilaben Udesing Gohel vs. Oriental Insurance Co. Ltd. and others (1996) 3 SCC 608 ) the Court relied upon the said directions and further held that in Union Carbide Corporations case (supra), this Court did not include the clause regarding literate persons compensation and directed that it should be given the same treatment in case the Court found it necessary to do so to protect the compensation awarded to them. The Court further added one guideline as under:- "We must add one further guideline to the effect that when the amount is invested in a fixed deposit, the bank should invariably be directed to affix a note on the fixed deposit receipt that no loan or advance should be granted on the strength of the said FDR without the express permission of the Court/Tribunal which ordered the deposit. This will eliminate the practice of taking loans which may be up to 80% of the amount invested and thereby defeating the very purpose of the order. We do hope that the Courts/Tribunal in the country will not succumb to the temptation of permitting huge withdrawals in the hope of disposing of the claim. We are sure that the Courts/Tribunals will realise their duty towards the victims of the accident so that a large part of the compensation amount is not lost to them. The very purpose of laying down the guidelines was to ensure the safety of the amount so that the claimants do not become victims of unscrupulous persons and unethical agreements or arrangements. We do hope our anxiety to protect the claimants from exploitation by such elements will be equally shared by the Courts/Tribunals". | 1[ds]15. From the aforesaid observations it cannot be held that there is a bar for the Claims Tribunal to award the compensation in excess of what is claimed, particularly when the evidence which is brought on record is sufficient to pass such award. In cases where there is no evidence on record, the Court may permit such amendment and allow to raise additional issue and give an opportunity to the parties to produce relevant evidence.The High Court observed that in all such cases, it is necessary to keep the doors open for the claimant to make the claims, on grounds not stated earlier or for more amounts under heads already specified in the application.18. The aforesaid decision of the Bombay High Court was relied upon and referred to by the Orissa High Court in Mulla Md. Abdul Wahib vs. Abdul Rahim and another (1994 ACJ 348 ) and G.B. Patnaik, J. (as he then was) observed that the expression "just compensation" would obviously mean that is fair, moderate and reasonable and awardable in the proved circumstances of a particular case and the expression "which appears to it to be just" vests a wide discretion in the Tribunal in the matter of determining of compensation. Thereafter, the Court referred to the decision in Sheikhupura Transport Co. Ltd. (supra) and held that the pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately but must necessarily be an estimate or even partly a conjecture, and if this is so, then it will be unreasonable to expect the party to state precisely the amount of damages or compensation that it would be entitled to. The Court also held that there are no fetters on the power of the Tribunal to award compensation in excess of the amount which is claimed in the application.19. Similarly, the High Court of Punjab and Haryana in Devki Nandan Bangur and others vs. State of Haryana and others (1995 ACJ 1288 ) observed that the grant of just and fair compensation is statutory responsibility of the Court and if, on the facts, the Court finds that the claimant is entitled to higher compensation, the Court should allow the claimant to amend his prayer and allow proper compensation.20. For the reasons discussed above, in our view, under the M.V. Act, there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award just compensation which is reasonable on the basis of evidence Produced on record. Further, in such cases there is no question of claim becoming time barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under(4) to Section 166, even report submitted to the Claims Tribunal under(6) of Section 158 can be treated as an application for compensation under the M.V. Act. If required, in appropriate cases, Court may permit amendment to the Claim Petition.However, it is to be clearly understood that M.V. Act does not provide for passing of further award after final award is passed. Therefore, in a case where injury to a victim requires periodical medical expenses, fresh and award cannot be passed or previous award cannot be reviewed when the medical expenses are incurred after finalisation of the compensation proceedings. Hence, only alternative is that at the time of passing of final award, Tribunal/Court should consider such eventuality and fix compensation accordingly. No one can suggest that it is improper to take into account expenditure genuinely and reasonably required to be incurred for future medical expenses. Future medical expenses required to be incurred can be determined only on the basis of fairafter taking into account increase in the cost of medical treatment.Further, compensation to a victim of a motor vehicle accident or in case of a fatal accident to the legal representatives is awarded under two heads, namely, Special damageswhich are suffered by the victim or the legal representatives and General damageswhich include compensation for pain and sufferings, loss of amenities, earning capacity and prospective expenses including expenses for medical treatment. With regard to the first part of the damages, that is, special damages suffered by the victim or the legal representative, it can be easily proved on the basis of the evidence which is in possession of the claimant. However with regard to the second partgeneral damages/compensation, it would be a matter of conjectures depending on number of imponderables.While calculating such damages, the Tribunal/Court is required to have some guess work taking into account the inflation factor. This aspect is well discussed by M.J. Rao, J. (as he then was) in P. Satyanarayana vs. I Babu Rajendra Prasad and another (1988 ACJ 88 (AP).In this view of the matter, in our view, it would be difficult to hold that for future medical expenses which are required to be incurred by a victim, fresh award could be passed. However, for such medical treatment, Court has to arrive at a reasonable estimate on the basis of the evidence brought on record. In the present case, it has been pointed out that for replacing the artificial leg every two to three years, appellant would be required to have some sort of operation and also change the artificial leg. At that time, the estimated expenses for this were Rs. 18000/and the High Court has awarded the said amount. For change of artificial leg every two or three years no compensation is awarded. Considering this aspect, if Rs. One lac is awarded as an additional compensation, appellant would be in a position to meet the said expenses from the interest of the said amount. Equally, it is true that the said amount is required to be properly invested onbasis so that recurring medical expenses could beprinciple is established in General Manager, Kerala State Road Transport Corporation, Trivandrum vs. Susamma Thomas (Mrs.) and others (1994) 2 SCC 176 ) and this Court held (in para 23)In a case of compensation for death it is appropriate that the Tribunals do keep in mind the principles enunciated by this Court in Union Carbide Corpn. vs. Union of India (1991) 4 SCC 584 ) in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptibility to exploitation. In that case approving the judgment of the Gujarat High Court in Muljibhai Ajarambhai Harijan vs. United India Insurance Co. Ltd. (1982) 1 Guj. LR 756), this Court offered the followingThe Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor be invested in long term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn;(ii) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in (i) above, but if lump sum payment is required for effecting purchases of any movable or immovable property such as, agricultural implements, rickshaw, etc. to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money;(iii) In the case ofpersons the Tribunal should ordinarily resort to the procedure set out at (i) above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expending and existing business or for purchasing some property as mentioned in (ii) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid;(iv) In the case of literate persons also the Tribunal may resort to the procedure indicated in (i) above, subject to the relaxation set out in (ii) and (iii) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to do order;(v) In the case of widows the Claims Tribunal should invariably follow the procedure set out in (i) above;(vi) In personal injury cases if further treatment is necessary the Claims Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment;(vii) In all cases which in vestment in long term fixed deposits in made in should be on condition that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount invested in paid monthly directly to the claimant or his guardian, as the case may be;(viii) In all cases Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency. To meet with such a contingency, if the amount awarded is substantial, the Claims Tribunal may invest it in more than one Fixed Deposit so that if need be one such F.D.R. can be liquidated".Further, in Lilaben Udesing Gohel vs. Oriental Insurance Co. Ltd. and others (1996) 3 SCC 608 ) the Court relied upon the said directions and further held that in Union Carbide Corporations case (supra), this Court did not include the clause regarding literate persons compensation and directed that it should be given the same treatment in case the Court found it necessary to do so to protect the compensation awarded to them. The Court further added one guideline asmust add one further guideline to the effect that when the amount is invested in a fixed deposit, the bank should invariably be directed to affix a note on the fixed deposit receipt that no loan or advance should be granted on the strength of the said FDR without the express permission of the Court/Tribunal which ordered the deposit. This will eliminate the practice of taking loans which may be up to 80% of the amount invested and thereby defeating the very purpose of the order. We do hope that the Courts/Tribunal in the country will not succumb to the temptation of permitting huge withdrawals in the hope of disposing of the claim. We are sure that the Courts/Tribunals will realise their duty towards the victims of the accident so that a large part of the compensation amount is not lost to them. The very purpose of laying down the guidelines was to ensure the safety of the amount so that the claimants do not become victims of unscrupulous persons and unethical agreements or arrangements. We do hope our anxiety to protect the claimants from exploitation by such elements will be equally shared by the Courts/Tribunals". | 1 | 5,964 | 2,029 | ### 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:
such medical treatment, Court has to arrive at a reasonable estimate on the basis of the evidence brought on record. In the present case, it has been pointed out that for replacing the artificial leg every two to three years, appellant would be required to have some sort of operation and also change the artificial leg. At that time, the estimated expenses for this were Rs. 18000/- and the High Court has awarded the said amount. For change of artificial leg every two or three years no compensation is awarded. Considering this aspect, if Rs. One lac is awarded as an additional compensation, appellant would be in a position to meet the said expenses from the interest of the said amount. Equally, it is true that the said amount is required to be properly invested on long-term basis so that recurring medical expenses could be met. This principle is established in General Manager, Kerala State Road Transport Corporation, Trivandrum vs. Susamma Thomas (Mrs.) and others (1994) 2 SCC 176 ) and this Court held (in para 23) thus:- "23. In a case of compensation for death it is appropriate that the Tribunals do keep in mind the principles enunciated by this Court in Union Carbide Corpn. vs. Union of India (1991) 4 SCC 584 ) in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptibility to exploitation. In that case approving the judgment of the Gujarat High Court in Muljibhai Ajarambhai Harijan vs. United India Insurance Co. Ltd. (1982) 1 Guj. LR 756), this Court offered the following guidelines:-(i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor be invested in long term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn;(ii) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in (i) above, but if lump sum payment is required for effecting purchases of any movable or immovable property such as, agricultural implements, rickshaw, etc. to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money;(iii) In the case of semi-literate persons the Tribunal should ordinarily resort to the procedure set out at (i) above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expending and existing business or for purchasing some property as mentioned in (ii) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid;(iv) In the case of literate persons also the Tribunal may resort to the procedure indicated in (i) above, subject to the relaxation set out in (ii) and (iii) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to do order;(v) In the case of widows the Claims Tribunal should invariably follow the procedure set out in (i) above;(vi) In personal injury cases if further treatment is necessary the Claims Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment;(vii) In all cases which in vestment in long term fixed deposits in made in should be on condition that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount invested in paid monthly directly to the claimant or his guardian, as the case may be;(viii) In all cases Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency. To meet with such a contingency, if the amount awarded is substantial, the Claims Tribunal may invest it in more than one Fixed Deposit so that if need be one such F.D.R. can be liquidated". 28. Further, in Lilaben Udesing Gohel vs. Oriental Insurance Co. Ltd. and others (1996) 3 SCC 608 ) the Court relied upon the said directions and further held that in Union Carbide Corporations case (supra), this Court did not include the clause regarding literate persons compensation and directed that it should be given the same treatment in case the Court found it necessary to do so to protect the compensation awarded to them. The Court further added one guideline as under:- "We must add one further guideline to the effect that when the amount is invested in a fixed deposit, the bank should invariably be directed to affix a note on the fixed deposit receipt that no loan or advance should be granted on the strength of the said FDR without the express permission of the Court/Tribunal which ordered the deposit. This will eliminate the practice of taking loans which may be up to 80% of the amount invested and thereby defeating the very purpose of the order. We do hope that the Courts/Tribunal in the country will not succumb to the temptation of permitting huge withdrawals in the hope of disposing of the claim. We are sure that the Courts/Tribunals will realise their duty towards the victims of the accident so that a large part of the compensation amount is not lost to them. The very purpose of laying down the guidelines was to ensure the safety of the amount so that the claimants do not become victims of unscrupulous persons and unethical agreements or arrangements. We do hope our anxiety to protect the claimants from exploitation by such elements will be equally shared by the Courts/Tribunals".
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1
### Explanation:
medical expenses which are required to be incurred by a victim, fresh award could be passed. However, for such medical treatment, Court has to arrive at a reasonable estimate on the basis of the evidence brought on record. In the present case, it has been pointed out that for replacing the artificial leg every two to three years, appellant would be required to have some sort of operation and also change the artificial leg. At that time, the estimated expenses for this were Rs. 18000/and the High Court has awarded the said amount. For change of artificial leg every two or three years no compensation is awarded. Considering this aspect, if Rs. One lac is awarded as an additional compensation, appellant would be in a position to meet the said expenses from the interest of the said amount. Equally, it is true that the said amount is required to be properly invested onbasis so that recurring medical expenses could beprinciple is established in General Manager, Kerala State Road Transport Corporation, Trivandrum vs. Susamma Thomas (Mrs.) and others (1994) 2 SCC 176 ) and this Court held (in para 23)In a case of compensation for death it is appropriate that the Tribunals do keep in mind the principles enunciated by this Court in Union Carbide Corpn. vs. Union of India (1991) 4 SCC 584 ) in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptibility to exploitation. In that case approving the judgment of the Gujarat High Court in Muljibhai Ajarambhai Harijan vs. United India Insurance Co. Ltd. (1982) 1 Guj. LR 756), this Court offered the followingThe Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor be invested in long term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn;(ii) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in (i) above, but if lump sum payment is required for effecting purchases of any movable or immovable property such as, agricultural implements, rickshaw, etc. to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money;(iii) In the case ofpersons the Tribunal should ordinarily resort to the procedure set out at (i) above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expending and existing business or for purchasing some property as mentioned in (ii) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid;(iv) In the case of literate persons also the Tribunal may resort to the procedure indicated in (i) above, subject to the relaxation set out in (ii) and (iii) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to do order;(v) In the case of widows the Claims Tribunal should invariably follow the procedure set out in (i) above;(vi) In personal injury cases if further treatment is necessary the Claims Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment;(vii) In all cases which in vestment in long term fixed deposits in made in should be on condition that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount invested in paid monthly directly to the claimant or his guardian, as the case may be;(viii) In all cases Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency. To meet with such a contingency, if the amount awarded is substantial, the Claims Tribunal may invest it in more than one Fixed Deposit so that if need be one such F.D.R. can be liquidated".Further, in Lilaben Udesing Gohel vs. Oriental Insurance Co. Ltd. and others (1996) 3 SCC 608 ) the Court relied upon the said directions and further held that in Union Carbide Corporations case (supra), this Court did not include the clause regarding literate persons compensation and directed that it should be given the same treatment in case the Court found it necessary to do so to protect the compensation awarded to them. The Court further added one guideline asmust add one further guideline to the effect that when the amount is invested in a fixed deposit, the bank should invariably be directed to affix a note on the fixed deposit receipt that no loan or advance should be granted on the strength of the said FDR without the express permission of the Court/Tribunal which ordered the deposit. This will eliminate the practice of taking loans which may be up to 80% of the amount invested and thereby defeating the very purpose of the order. We do hope that the Courts/Tribunal in the country will not succumb to the temptation of permitting huge withdrawals in the hope of disposing of the claim. We are sure that the Courts/Tribunals will realise their duty towards the victims of the accident so that a large part of the compensation amount is not lost to them. The very purpose of laying down the guidelines was to ensure the safety of the amount so that the claimants do not become victims of unscrupulous persons and unethical agreements or arrangements. We do hope our anxiety to protect the claimants from exploitation by such elements will be equally shared by the Courts/Tribunals".
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Mahant Harnam Singh, Chela Ofbhai Narain Singh Vs. Gurdial Singh & Anr | Sadhus started as a section of Sikhs who were followers of Guru Gobind Singh, but, subsequently, in the period of about 300 years that has since elapsed, they have veered away from the Sikh religion. That is why, after giving their historical origin, Macauliffe expressed the opinion that Nirmalas were only nominally Sikhs. In Maclagans Census Report also it was mentioned that Nirmala Sadhus are treated as Sikhs in some places, while in other places they are returned as Hindus. He has mentioned the Districts in Punjab where they are returned mainly as Hindus, and others where they were considered as Sikhs. Faridkot, the District with in which the institution with which we are concerned is situated, is mentioned as a place where they are regarded as Hindus and in the census they have been returned as such. In these circumstances, we do not think that this material by itself, which the High Court culled out of the judgment of Bhide, J., could properly lead to the inference that Nirmalas are Sikhs.10. Bhide. J., quoted Sir Edward Maclagans Census Report in greater detail and mentioned how in that Census Report there was a description that the Nirmala Sadhus were at first devoted to the regulations of Gobind Singh, but their taste for Sanskrit literature led them to imbibe the principles of the Vedanta and to re-adopt many of the customs of the Shastras. They gave up the use of meat and spirts and they adopted the dress of the Indian faqir which was strictly prohibited to the true followers of Guru Gobind Singh. They had so far deviated from the orthodox Sikhs that they were hardly distinguishable from the Udasi followers of Nanak. They were looked on as unorthodox by most true Sikhs and it was also observed that more of them were returned in the census as Hindus than as Sikhs. Then the "Glossary of the Tribes and Castes of the Punjab and N. W. f. Province" by H.A. Rose contained a statement that the Nirmalas, having adhered to the study of the orthodox Hindu scriptures, had lost touch with Sikhism.In Omans "Mystics Ascetics, and Saints of India" Nirmalas were described as followers of "Vedanta philosophy". From all these authorities an inference clearly follows that Nirmalas have a close affinity to Hindus and in the Census Report for the Punjab for the year 1891 a large number of Nirmalas actually declared themselves as Hindus. Bhide, J., on these materials, rightly came to the conclusion that Nirmala Sadhus are not Sikhs.11. Further, in this case, there was material showing that this institution at Jhandawala was registered as one of the branches of the principal institution of Nirmala Sadhus known as the Panchayati Akhara situated at Kankhal near Hardwar. There was further evidence showing that in this institution the wordship is primarily of a Samadh which is against all tenets of the Sikh religion. Nirmala Sadhus, it appears, as a class worship at Samadhs which goes to show that they can no longer be regarded as people following the Sikh religion. In their beliefs and practices, the Nirmala Sadhus are now quite akin to Udasis, and there is a series of cases which has laid down that members of the Udasi sect are not Sikhs. We need only mention the view expressed by the Privy Council in Hem Singh v. Basant Das, 63 Ind App 180: (AIR 1936 PC 93 ), holding that"parallel with the growth of this movement, there seems from the time of Siri Chand, Nanaks son, to have been a sect of Udasis who, while using the same sacred writings as the Sikhs, kept up much more of the old Hindu practices, followed asceticism, were given to the veneration of samadhs and tombs, and continued the Hindu rites concerning birth, marriage, and Shradh..... the Udasis, so far as the matter can be decided by beliefs and practices, are, from the point of view of Sikhs, schismaties who separated in the earliest days of the movement and never merged thereafter".Relying on these observations of the Privy Council, the Lahore High Court in Ishar Das v. Mohan Singh AIR 1939 Lah 239, held:"It is clearly established in the present case that this is an Udasi institution and that the Sikhs have nothing to do with it except that they may have gone there to listen to the reading of the Sikh scriptures, which is also done by the Udasis."These decisions clearly indicate the principle that, though the Sikh Guru Granth Sahib is read in the shrines managed by the members of the Udasi sect, that was not enough to hold that those shrines were Sikh Gurdwaras.In the case before us, the mere fact that at some stage there was a Guru Granth Sahib in this Dera cannot thus lead to any conclusion that this institution was meant for, or belonged ro, the followers of the Sikh religion. Clearly, the Dera was maintained for an entirely distinct sect known as the Nirmala Sadhus who cannot be regarded as Sikhs and, consequently, in their mere capacity of followers of Sikh religion residing in village Jhandawala, the plaintiffs/ respondents could not v be held to have such an interest as could entitle them to institute the suit under S. 92 of the Code of Civil Procedure. The judgment of the High Court has to be set aside on this ground.12. In view of the fact that we are holding that this suit was not instituted properly by persons interested as required by Sec. 92, C.P. C., we consider it unnecessary to express any opinion at all on the second main point decided against the appellant by the High Court, viz., that there were sufficient grounds for the removal of the appellant from the office of the Mahant. In this case it is not at all necessary to record any finding on that aspect of the case and consequently, we refrain from commenting on the finding recorded by the High Court on this question. | 1[ds]6. As we have indicated earlier, in the plaint the plaintiffs claimed interest in the trust property in their capacity of representatives of the owners of the land situated at village Jhandawala and of residents of village Jhandawala. The findings of fact recorded show that the land, which was donated to this institution, was given by the inferior owners of this village out of their joint land. The plaintiffs respondents did show that they were Lambardars in the village but no attempt has been made at any stage to prove that any of the two plaintiffs was an inferior owner of land situated in this village, or that he was a descendant or a successor in-interest of any of the inferior owners who donated the land to this institution in the year 1904. The mere capacity as Lambardars does not entitle the plaintiffs respondents to claim that they are representatives of the inferior owners of the land who donated the land to this institution The second ground of claim was that the plaintiffs/respondents were residents of village Jhandawala, but, again, there is no pleading and no evidence tendered to show that the residents of village Jhandawala in general had any such interest in this trust which could entitle them to institute such a suit. The only allegation was that a Langar used to be run in this institution where free kitchen was provided to visitors, It was nowhere stated that any such free kitchen was being run for the general residents of village Jhandawala who could, as of right, claim to be fed in the Langar. Mere residence in a village where free kitchen is being run for providing food to visitors does not create any interest in the residents of the village of such a nature as to claim that they can institute a suit for the removal of thewith the view expressed by the Privy Council, we hold that in the present case the plaintiffs/respondents, who were merely Lambardars and residents of village Jhandawala, had, in those capacities, no such interest as could entitle them to institute thisit appears that during the trial of the suit as well as in the appeal before the High Court, the claim of the plaintiffs that they had an interest entitling them to institute the suit was actually presses and examined on thisare unable to agree that these passages relied upon by the High Court are enough to lead to an inference that Nirmala Sadhus are Sikhs and they still retain the essential characteristics of the Sikh faith. It is true that, in their origin, Nirmala Sadhus started as a section of Sikhs who were followers of Guru Gobind Singh, but, subsequently, in the period of about 300 years that has since elapsed, they have veered away from the Sikh religion. That is why, after giving their historical origin, Macauliffe expressed the opinion that Nirmalas were only nominally Sikhs. In Maclagans Census Report also it was mentioned that Nirmala Sadhus are treated as Sikhs in some places, while in other places they are returned as Hindus. He has mentioned the Districts in Punjab where they are returned mainly as Hindus, and others where they were considered as Sikhs. Faridkot, the District with in which the institution with which we are concerned is situated, is mentioned as a place where they are regarded as Hindus and in the census they have been returned as such. In these circumstances, we do not think that this material by itself, which the High Court culled out of the judgment of Bhide, J., could properly lead to the inference that Nirmalas are Sikhs.Sikhs.11. Further, in this case, there was material showing that this institution at Jhandawala was registered as one of the branches of the principal institution of Nirmala Sadhus known as the Panchayati Akhara situated at Kankhal near Hardwar. There was further evidence showing that in this institution the wordship is primarily of a Samadh which is against all tenets of the Sikh religion. Nirmala Sadhus, it appears, as a class worship at Samadhs which goes to show that they can no longer be regarded as people following the Sikhdecisions clearly indicate the principle that, though the Sikh Guru Granth Sahib is read in the shrines managed by the members of the Udasi sect, that was not enough to hold that those shrines were Sikh Gurdwaras.In the case before us, the mere fact that at some stage there was a Guru Granth Sahib in this Dera cannot thus lead to any conclusion that this institution was meant for, or belonged ro, the followers of the Sikh religion. Clearly, the Dera was maintained for an entirely distinct sect known as the Nirmala Sadhus who cannot be regarded as Sikhs and, consequently, in their mere capacity of followers of Sikh religion residing in village Jhandawala, the plaintiffs/ respondents could not v be held to have such an interest as could entitle them to institute the suit under S. 92 of theCode of Civil Procedure. The judgment of the High Court has to be set aside on this ground.12. In view of the fact that we are holding that this suit was not instituted properly by persons interested as required by Sec. 92, C.P. C., we consider it unnecessary to express any opinion at all on the second main point decided against the appellant by the High Court, viz., that there were sufficient grounds for the removal of the appellant from the office of the Mahant. In this case it is not at all necessary to record any finding on that aspect of the case and consequently, we refrain from commenting on the finding recorded by the High Court on this question. | 1 | 3,974 | 1,031 | ### 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:
Sadhus started as a section of Sikhs who were followers of Guru Gobind Singh, but, subsequently, in the period of about 300 years that has since elapsed, they have veered away from the Sikh religion. That is why, after giving their historical origin, Macauliffe expressed the opinion that Nirmalas were only nominally Sikhs. In Maclagans Census Report also it was mentioned that Nirmala Sadhus are treated as Sikhs in some places, while in other places they are returned as Hindus. He has mentioned the Districts in Punjab where they are returned mainly as Hindus, and others where they were considered as Sikhs. Faridkot, the District with in which the institution with which we are concerned is situated, is mentioned as a place where they are regarded as Hindus and in the census they have been returned as such. In these circumstances, we do not think that this material by itself, which the High Court culled out of the judgment of Bhide, J., could properly lead to the inference that Nirmalas are Sikhs.10. Bhide. J., quoted Sir Edward Maclagans Census Report in greater detail and mentioned how in that Census Report there was a description that the Nirmala Sadhus were at first devoted to the regulations of Gobind Singh, but their taste for Sanskrit literature led them to imbibe the principles of the Vedanta and to re-adopt many of the customs of the Shastras. They gave up the use of meat and spirts and they adopted the dress of the Indian faqir which was strictly prohibited to the true followers of Guru Gobind Singh. They had so far deviated from the orthodox Sikhs that they were hardly distinguishable from the Udasi followers of Nanak. They were looked on as unorthodox by most true Sikhs and it was also observed that more of them were returned in the census as Hindus than as Sikhs. Then the "Glossary of the Tribes and Castes of the Punjab and N. W. f. Province" by H.A. Rose contained a statement that the Nirmalas, having adhered to the study of the orthodox Hindu scriptures, had lost touch with Sikhism.In Omans "Mystics Ascetics, and Saints of India" Nirmalas were described as followers of "Vedanta philosophy". From all these authorities an inference clearly follows that Nirmalas have a close affinity to Hindus and in the Census Report for the Punjab for the year 1891 a large number of Nirmalas actually declared themselves as Hindus. Bhide, J., on these materials, rightly came to the conclusion that Nirmala Sadhus are not Sikhs.11. Further, in this case, there was material showing that this institution at Jhandawala was registered as one of the branches of the principal institution of Nirmala Sadhus known as the Panchayati Akhara situated at Kankhal near Hardwar. There was further evidence showing that in this institution the wordship is primarily of a Samadh which is against all tenets of the Sikh religion. Nirmala Sadhus, it appears, as a class worship at Samadhs which goes to show that they can no longer be regarded as people following the Sikh religion. In their beliefs and practices, the Nirmala Sadhus are now quite akin to Udasis, and there is a series of cases which has laid down that members of the Udasi sect are not Sikhs. We need only mention the view expressed by the Privy Council in Hem Singh v. Basant Das, 63 Ind App 180: (AIR 1936 PC 93 ), holding that"parallel with the growth of this movement, there seems from the time of Siri Chand, Nanaks son, to have been a sect of Udasis who, while using the same sacred writings as the Sikhs, kept up much more of the old Hindu practices, followed asceticism, were given to the veneration of samadhs and tombs, and continued the Hindu rites concerning birth, marriage, and Shradh..... the Udasis, so far as the matter can be decided by beliefs and practices, are, from the point of view of Sikhs, schismaties who separated in the earliest days of the movement and never merged thereafter".Relying on these observations of the Privy Council, the Lahore High Court in Ishar Das v. Mohan Singh AIR 1939 Lah 239, held:"It is clearly established in the present case that this is an Udasi institution and that the Sikhs have nothing to do with it except that they may have gone there to listen to the reading of the Sikh scriptures, which is also done by the Udasis."These decisions clearly indicate the principle that, though the Sikh Guru Granth Sahib is read in the shrines managed by the members of the Udasi sect, that was not enough to hold that those shrines were Sikh Gurdwaras.In the case before us, the mere fact that at some stage there was a Guru Granth Sahib in this Dera cannot thus lead to any conclusion that this institution was meant for, or belonged ro, the followers of the Sikh religion. Clearly, the Dera was maintained for an entirely distinct sect known as the Nirmala Sadhus who cannot be regarded as Sikhs and, consequently, in their mere capacity of followers of Sikh religion residing in village Jhandawala, the plaintiffs/ respondents could not v be held to have such an interest as could entitle them to institute the suit under S. 92 of the Code of Civil Procedure. The judgment of the High Court has to be set aside on this ground.12. In view of the fact that we are holding that this suit was not instituted properly by persons interested as required by Sec. 92, C.P. C., we consider it unnecessary to express any opinion at all on the second main point decided against the appellant by the High Court, viz., that there were sufficient grounds for the removal of the appellant from the office of the Mahant. In this case it is not at all necessary to record any finding on that aspect of the case and consequently, we refrain from commenting on the finding recorded by the High Court on this question.
### Response:
1
### Explanation:
6. As we have indicated earlier, in the plaint the plaintiffs claimed interest in the trust property in their capacity of representatives of the owners of the land situated at village Jhandawala and of residents of village Jhandawala. The findings of fact recorded show that the land, which was donated to this institution, was given by the inferior owners of this village out of their joint land. The plaintiffs respondents did show that they were Lambardars in the village but no attempt has been made at any stage to prove that any of the two plaintiffs was an inferior owner of land situated in this village, or that he was a descendant or a successor in-interest of any of the inferior owners who donated the land to this institution in the year 1904. The mere capacity as Lambardars does not entitle the plaintiffs respondents to claim that they are representatives of the inferior owners of the land who donated the land to this institution The second ground of claim was that the plaintiffs/respondents were residents of village Jhandawala, but, again, there is no pleading and no evidence tendered to show that the residents of village Jhandawala in general had any such interest in this trust which could entitle them to institute such a suit. The only allegation was that a Langar used to be run in this institution where free kitchen was provided to visitors, It was nowhere stated that any such free kitchen was being run for the general residents of village Jhandawala who could, as of right, claim to be fed in the Langar. Mere residence in a village where free kitchen is being run for providing food to visitors does not create any interest in the residents of the village of such a nature as to claim that they can institute a suit for the removal of thewith the view expressed by the Privy Council, we hold that in the present case the plaintiffs/respondents, who were merely Lambardars and residents of village Jhandawala, had, in those capacities, no such interest as could entitle them to institute thisit appears that during the trial of the suit as well as in the appeal before the High Court, the claim of the plaintiffs that they had an interest entitling them to institute the suit was actually presses and examined on thisare unable to agree that these passages relied upon by the High Court are enough to lead to an inference that Nirmala Sadhus are Sikhs and they still retain the essential characteristics of the Sikh faith. It is true that, in their origin, Nirmala Sadhus started as a section of Sikhs who were followers of Guru Gobind Singh, but, subsequently, in the period of about 300 years that has since elapsed, they have veered away from the Sikh religion. That is why, after giving their historical origin, Macauliffe expressed the opinion that Nirmalas were only nominally Sikhs. In Maclagans Census Report also it was mentioned that Nirmala Sadhus are treated as Sikhs in some places, while in other places they are returned as Hindus. He has mentioned the Districts in Punjab where they are returned mainly as Hindus, and others where they were considered as Sikhs. Faridkot, the District with in which the institution with which we are concerned is situated, is mentioned as a place where they are regarded as Hindus and in the census they have been returned as such. In these circumstances, we do not think that this material by itself, which the High Court culled out of the judgment of Bhide, J., could properly lead to the inference that Nirmalas are Sikhs.Sikhs.11. Further, in this case, there was material showing that this institution at Jhandawala was registered as one of the branches of the principal institution of Nirmala Sadhus known as the Panchayati Akhara situated at Kankhal near Hardwar. There was further evidence showing that in this institution the wordship is primarily of a Samadh which is against all tenets of the Sikh religion. Nirmala Sadhus, it appears, as a class worship at Samadhs which goes to show that they can no longer be regarded as people following the Sikhdecisions clearly indicate the principle that, though the Sikh Guru Granth Sahib is read in the shrines managed by the members of the Udasi sect, that was not enough to hold that those shrines were Sikh Gurdwaras.In the case before us, the mere fact that at some stage there was a Guru Granth Sahib in this Dera cannot thus lead to any conclusion that this institution was meant for, or belonged ro, the followers of the Sikh religion. Clearly, the Dera was maintained for an entirely distinct sect known as the Nirmala Sadhus who cannot be regarded as Sikhs and, consequently, in their mere capacity of followers of Sikh religion residing in village Jhandawala, the plaintiffs/ respondents could not v be held to have such an interest as could entitle them to institute the suit under S. 92 of theCode of Civil Procedure. The judgment of the High Court has to be set aside on this ground.12. In view of the fact that we are holding that this suit was not instituted properly by persons interested as required by Sec. 92, C.P. C., we consider it unnecessary to express any opinion at all on the second main point decided against the appellant by the High Court, viz., that there were sufficient grounds for the removal of the appellant from the office of the Mahant. In this case it is not at all necessary to record any finding on that aspect of the case and consequently, we refrain from commenting on the finding recorded by the High Court on this question.
|
State of Madras Vs. Richardson and Cruddas Limited | for work and labour :(a) the stipulation for a consolidated lump payment of Rs. 1, 160 per ton for fabrication, supply and erection at site of all steelwork etc.;(b) no provision for the passing of the property in the goods to the factory before the actual completion of the erection work;(c) no provision under the contract for dissecting the value of the goods supplied and the value of the remuneration for the work and labour bestowed in the execution of the work;(d) the petitioner (the respondents) not being a dealer carrying on business in the steel and component parts required for the erection work and that the component parts had to be specially fabricated so as to be suitable for particular erection work;(e) the predominant idea underlying the contract being the bestowing of special skill and labour by the experienced engineers and mechanics of the petitioner (the respondents) company."4. We have carefully gone through the correspondence between the parties and after considering the arguments advanced by counsel for the State, we hold that the High Court was right in the conclusions they reached about the essential features of the contract between the parties.5. Counsel for the State invited our attention to the bills submitted by the respondents from time to time between October 31, 1957 and June 30, 1959. In these bills charge was made under the head "fabrication and supply of steelwork" at the rate of Rs. 1, 100 per ton. Counsel said that this disclosed that the original contract between the respondents and the society was modified, and it was stipulated to sell to the society certain steel parts required by the society and the price was to be paid at Rs. 1, 100 per ton; the balance of Rs. 60 was to be paid as remuneration for the work of erecting the steel parts supplied. It is true that the quotation submitted by the respondents was Rs. 1, 160 per ton and the bills submitted by the respondents from time to time were drawn at the rate of Rs. 1, 100 per ton. But there is no warrant for assuming from the preparation of the bills at the rate of Rs. 1, 100 per ton that there were two contracts - one for supply of fabricated steel parts at the rate of Rs. 1, 100 per ton and another for remunerating the respondents for the work of erection of the steel parts at the rate of Rs. 60 per ton.We may now turn to the second item relating to the turnover from the supply of fabrication and installation of "bottle cooling equipment" at the premises of the respondents customers. A customer desiring to obtain a bottle cooling equipment had to place an order. The respondents then fabricated the component parts according to the requirements and specifications of the customer. They then despatched the component parts to the site and installed the same on a suitable base and foundation at the premises of the customer. The installation of bottle cooling unit in the premises of the customer was not merely auxilliary or incidental to the supply of the unit. In respect of the bottle cooling equipment also there are no formal written contracts. The terms of the contract have to he gathered from the correspondence. Sample correspondence with a customer may be briefly set out. By letter dated November 15, 1957, addressed to K. V. Ananda Rao, Proprietor, Janata Hotel, the respondents sent their quotation for "one six hole double row combination bottle cooler complete as per their standard specification with vitrolite glass panelling for the three sides, the fourth side being fitted with eternite sheet panelling with marble top, one circular sleeve fitted with hand driven churner for making ice cream, with 2 Nos. G.I. ice can with suitable cover plate for making ice, four circular sleeves for storage of soft beverages in the drink side with Frigidaire ADI-33 model air-cooled condensing unit, driven by 1/2 HP, 220/230 volts, 50 cycles, single phase A.C. motor, 4 Nos. full and 2 Nos. half six brass tinned inner vessels (delivered F.O.R. Hubli and installed at their address) at Rs. 4, 619. The work order dated December 13, 1957, which recorded the work done at the site at which the bottle cooling equipment was installed, set out the various steps taken :Unpacked crates, checked up cooler, marble, vitrolite and found all intact. Placed the cooler on the plinth area, given measurements for the condensing unit, placed the unit in position, given pipe connections etc. evacuated system, allowed gas pressure, tested joints for leaks etc. and shut down the cooler and left the machine idle for want of motive power to continue the performance.6. After obtaining power connection, restarted the cooler, mixed up calcium chloride, tested joints for leaks etc., charged F 12 gas and oil to system; throttled suction line, opened up values fully, adjusted THV OS valve etc., checked up performance of the cooler, loaded the cooler, adjusted MX6 AC valve, checked up a few cycles of operation and left the machine in working order."7. An inclusive price was charged by the respondents for the work of fabrication of the bottle cooling equipment required in the premises of the customer and for installation of the equipment. Under the terms of the contract, the respondents undertook to instal a bottle cooling equipment, that is, to fabricate different parts of the unit according to the special requirements of the customer, and to instal the unit in the premises of the customer. Each bottle cooling equipment required special fabrication and had to be installed at the place selected by the customer and found suitable for installation of the unit. The contract being one for supplying for an inclusive price a specifically designed fabricated unit to be assembled and installed by specially trained technicians in the premises of the customer, it was not a contract for sale of a unit or different parts of the unit as specific goods, but a works contract. | 0[ds]Under the Act, turnover from sale of goods alone is chargeable to tax. To make the consideration received under the agreement between the respondents and the society it had to be established that the respondents had sold specific goods. It had therefore to be established that the consideration was received under a contract to sell specific goods for a price, and property in the goods contracted to be sold passed to the society, when the goods were delivered in pursuance of the contract. If the contract was for completing the stipulated work and for that purpose to use materials belonging to the respondents in the performance or execution of the contract as accessory to "work and labour", the contract must be regarded as a works contract, and not a contract for sale, even if the property in the goods ultimately passes as a result of theis no formal contract in the present case for fabrication and erection of the steel structures required by the society. The agreement between the parties has to be ascertained from the correspondence betweencondition No. 8 the method of payment was specified. It was stated that the respondents would "require payment" to be made in respect of the structural steelwork on the weight calculated according to B.S. weights from the nett. lengths and sizes of sections as shown in the material lists, without deductions for holes, notches and skew cuts. Condition No. 9 set out the terms of payment. Condition No. 10 set out the time schedule for completion.We have carefully gone through the correspondence between the parties and after considering the arguments advanced by counsel for the State, we hold that the High Court was right in the conclusions they reached about the essential features of the contract between theis true that the quotation submitted by the respondents was Rs. 1, 160 per ton and the bills submitted by the respondents from time to time were drawn at the rate of Rs. 1, 100 per ton. But there is no warrant for assuming from the preparation of the bills at the rate of Rs. 1, 100 per ton that there were two contractsone for supply of fabricated steel parts at the rate of Rs. 1, 100 per ton and another for remunerating the respondents for the work of erection of the steel parts at the rate of Rs. 60 perinstallation of bottle cooling unit in the premises of the customer was not merely auxilliary or incidental to the supply of the unit. In respect of the bottle cooling equipment also there are no formal written contracts. The terms of the contract have to he gathered from the correspondence.An inclusive price was charged by the respondents for the work of fabrication of the bottle cooling equipment required in the premises of the customer and for installation of the equipment. Under the terms of the contract, the respondents undertook to instal a bottle cooling equipment, that is, to fabricate different parts of the unit according to the special requirements of the customer, and to instal the unit in the premises of the customer. Each bottle cooling equipment required special fabrication and had to be installed at the place selected by the customer and found suitable for installation of the unit. The contract being one for supplying for an inclusive price a specifically designed fabricated unit to be assembled and installed by specially trained technicians in the premises of the customer, it was not a contract for sale of a unit or different parts of the unit as specific goods, but a works contract. | 0 | 3,258 | 647 | ### 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:
for work and labour :(a) the stipulation for a consolidated lump payment of Rs. 1, 160 per ton for fabrication, supply and erection at site of all steelwork etc.;(b) no provision for the passing of the property in the goods to the factory before the actual completion of the erection work;(c) no provision under the contract for dissecting the value of the goods supplied and the value of the remuneration for the work and labour bestowed in the execution of the work;(d) the petitioner (the respondents) not being a dealer carrying on business in the steel and component parts required for the erection work and that the component parts had to be specially fabricated so as to be suitable for particular erection work;(e) the predominant idea underlying the contract being the bestowing of special skill and labour by the experienced engineers and mechanics of the petitioner (the respondents) company."4. We have carefully gone through the correspondence between the parties and after considering the arguments advanced by counsel for the State, we hold that the High Court was right in the conclusions they reached about the essential features of the contract between the parties.5. Counsel for the State invited our attention to the bills submitted by the respondents from time to time between October 31, 1957 and June 30, 1959. In these bills charge was made under the head "fabrication and supply of steelwork" at the rate of Rs. 1, 100 per ton. Counsel said that this disclosed that the original contract between the respondents and the society was modified, and it was stipulated to sell to the society certain steel parts required by the society and the price was to be paid at Rs. 1, 100 per ton; the balance of Rs. 60 was to be paid as remuneration for the work of erecting the steel parts supplied. It is true that the quotation submitted by the respondents was Rs. 1, 160 per ton and the bills submitted by the respondents from time to time were drawn at the rate of Rs. 1, 100 per ton. But there is no warrant for assuming from the preparation of the bills at the rate of Rs. 1, 100 per ton that there were two contracts - one for supply of fabricated steel parts at the rate of Rs. 1, 100 per ton and another for remunerating the respondents for the work of erection of the steel parts at the rate of Rs. 60 per ton.We may now turn to the second item relating to the turnover from the supply of fabrication and installation of "bottle cooling equipment" at the premises of the respondents customers. A customer desiring to obtain a bottle cooling equipment had to place an order. The respondents then fabricated the component parts according to the requirements and specifications of the customer. They then despatched the component parts to the site and installed the same on a suitable base and foundation at the premises of the customer. The installation of bottle cooling unit in the premises of the customer was not merely auxilliary or incidental to the supply of the unit. In respect of the bottle cooling equipment also there are no formal written contracts. The terms of the contract have to he gathered from the correspondence. Sample correspondence with a customer may be briefly set out. By letter dated November 15, 1957, addressed to K. V. Ananda Rao, Proprietor, Janata Hotel, the respondents sent their quotation for "one six hole double row combination bottle cooler complete as per their standard specification with vitrolite glass panelling for the three sides, the fourth side being fitted with eternite sheet panelling with marble top, one circular sleeve fitted with hand driven churner for making ice cream, with 2 Nos. G.I. ice can with suitable cover plate for making ice, four circular sleeves for storage of soft beverages in the drink side with Frigidaire ADI-33 model air-cooled condensing unit, driven by 1/2 HP, 220/230 volts, 50 cycles, single phase A.C. motor, 4 Nos. full and 2 Nos. half six brass tinned inner vessels (delivered F.O.R. Hubli and installed at their address) at Rs. 4, 619. The work order dated December 13, 1957, which recorded the work done at the site at which the bottle cooling equipment was installed, set out the various steps taken :Unpacked crates, checked up cooler, marble, vitrolite and found all intact. Placed the cooler on the plinth area, given measurements for the condensing unit, placed the unit in position, given pipe connections etc. evacuated system, allowed gas pressure, tested joints for leaks etc. and shut down the cooler and left the machine idle for want of motive power to continue the performance.6. After obtaining power connection, restarted the cooler, mixed up calcium chloride, tested joints for leaks etc., charged F 12 gas and oil to system; throttled suction line, opened up values fully, adjusted THV OS valve etc., checked up performance of the cooler, loaded the cooler, adjusted MX6 AC valve, checked up a few cycles of operation and left the machine in working order."7. An inclusive price was charged by the respondents for the work of fabrication of the bottle cooling equipment required in the premises of the customer and for installation of the equipment. Under the terms of the contract, the respondents undertook to instal a bottle cooling equipment, that is, to fabricate different parts of the unit according to the special requirements of the customer, and to instal the unit in the premises of the customer. Each bottle cooling equipment required special fabrication and had to be installed at the place selected by the customer and found suitable for installation of the unit. The contract being one for supplying for an inclusive price a specifically designed fabricated unit to be assembled and installed by specially trained technicians in the premises of the customer, it was not a contract for sale of a unit or different parts of the unit as specific goods, but a works contract.
### Response:
0
### Explanation:
Under the Act, turnover from sale of goods alone is chargeable to tax. To make the consideration received under the agreement between the respondents and the society it had to be established that the respondents had sold specific goods. It had therefore to be established that the consideration was received under a contract to sell specific goods for a price, and property in the goods contracted to be sold passed to the society, when the goods were delivered in pursuance of the contract. If the contract was for completing the stipulated work and for that purpose to use materials belonging to the respondents in the performance or execution of the contract as accessory to "work and labour", the contract must be regarded as a works contract, and not a contract for sale, even if the property in the goods ultimately passes as a result of theis no formal contract in the present case for fabrication and erection of the steel structures required by the society. The agreement between the parties has to be ascertained from the correspondence betweencondition No. 8 the method of payment was specified. It was stated that the respondents would "require payment" to be made in respect of the structural steelwork on the weight calculated according to B.S. weights from the nett. lengths and sizes of sections as shown in the material lists, without deductions for holes, notches and skew cuts. Condition No. 9 set out the terms of payment. Condition No. 10 set out the time schedule for completion.We have carefully gone through the correspondence between the parties and after considering the arguments advanced by counsel for the State, we hold that the High Court was right in the conclusions they reached about the essential features of the contract between theis true that the quotation submitted by the respondents was Rs. 1, 160 per ton and the bills submitted by the respondents from time to time were drawn at the rate of Rs. 1, 100 per ton. But there is no warrant for assuming from the preparation of the bills at the rate of Rs. 1, 100 per ton that there were two contractsone for supply of fabricated steel parts at the rate of Rs. 1, 100 per ton and another for remunerating the respondents for the work of erection of the steel parts at the rate of Rs. 60 perinstallation of bottle cooling unit in the premises of the customer was not merely auxilliary or incidental to the supply of the unit. In respect of the bottle cooling equipment also there are no formal written contracts. The terms of the contract have to he gathered from the correspondence.An inclusive price was charged by the respondents for the work of fabrication of the bottle cooling equipment required in the premises of the customer and for installation of the equipment. Under the terms of the contract, the respondents undertook to instal a bottle cooling equipment, that is, to fabricate different parts of the unit according to the special requirements of the customer, and to instal the unit in the premises of the customer. Each bottle cooling equipment required special fabrication and had to be installed at the place selected by the customer and found suitable for installation of the unit. The contract being one for supplying for an inclusive price a specifically designed fabricated unit to be assembled and installed by specially trained technicians in the premises of the customer, it was not a contract for sale of a unit or different parts of the unit as specific goods, but a works contract.
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