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S. Narayanappa & Ors Vs. Commissioner Of Income-Tax, Bangalore | in respect of assessments beyond the period of four years, but within a period of eight years, from the end of the relevant year. The first condition is that the Income tax Officer must have reason to believe that the income, profits or gains chargeable to income -tax had been under-assessed. The second condition is that he must have reason to believe that such under-assessment had occurred by reason of either (i) omission or failure on the part of an assessee to make a return of his income under S. 22, or (ii) omission or failure on the part of the assessee to disclose fully and truly all the material facts necessary for his assessment for that year. Both these conditions are conditions precedent to be satisfied before the Income-tax Officer acquires jurisdiction to issue a notice under the Section. But the legal position is that if there are in fact some reasonable grounds for the Income-tax Officer to believe that there had been any non-disclosure as regards any fact, which could have a material bearing on the question of under-assessment that would be sufficient to give jurisdiction to the Income tax Officer to issue the notice under S. 34. Whether these grounds are adequate or not is not a matter for the Court to investigate. In other words, the sufficiency of the grounds which induced the Income-tax Officer to act is not a justiciable issue. It is of course open for the assessee to contend that the Income-tax Officer did not hold the belief that there had been such non-disclosure. In other words, the existence of the belief can be challenged by the assessee but not the sufficiency of the reasons for the belief. Again the expression "reason to believe" in S. 34 of the Income-tax Act does not mean a purely subjective satisfaction on the part of the Income-tax Officer. The belief must be held in good faith: it cannot be merely a pretence. To put it differently it is open to the Court to examine the question whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the Section. To this limited extent, the action of the Income-tax Officer in starting proceedings under S. 34 of the Act is open to challenge in a Court of law. (See Calcutta Discount Co. Ltd. v. income-tax Officer) (196l) 41 ITR l9l: (AIR) 1961 SC 372) . 3. In the present case the High Court has pointed out that the Income-tax Officer when examining the relevant material in the proceedings for the assessment year 1955-56 found that he appellant had made investments to the extent of Rs. 39,000 in the account year under question when the income assessed was only Rs. 36,068. On further examination it was discovered that items of house property acquired long before relevant accounting year had been suppressed. The High Court, therefore, held that the Income-tax Officer had reasonable grounds for thinking that there was non-disclosure on the part of the appellant and that there was under-assessment for the assessment year 1951-52. 4. It was also contended for the appellant that the Income-tax Officer should have communicated to him the reasons which led him to initiate the proceedings under S. 34 of the Act. It was stated that a request to this effect was made by the appellant to the Income-tax Officer, but the Income-tax Officer declined to disclose the reasons. In our opinion, the argument of the appellant on this point is misconceived. The proceedings for assessment or re-assessment under S. 34 (l) (a) of the Income-tax Act start with the issue of a notice and it is only after the service of the notice that the assessee, whose income is sought to be assessed or re-assessed, becomes a party to those proceedings. The earlier stage of the proceeding for recording the reasons of the Income-tax Officer and for obtaining the sanction of the Commissioner are administrative in character and are not quasi judicial. The scheme of S. 34 of the Act is that, if the conditions of the main Section are satisfied a notice has to be issued to the assessee containing all or any of the requirements which may be included in a notice under sub-s. (2) of S. 22. But before issuing the notice, the proviso requires that the officer should record his reasons for initiating action under S. 34 and obtain the sanction of the Commissioner who must be satisfied that the action under S. 34 was justified. There is no requirement in any of the provisions of the Act or any Section laying down as a condition for the initiation of the proceedings that the reasons which induced the Commissioner to accord sanction to proceed under S. 34 must also be communicated to the assessee. 5. In the Presidency Talkies Ltd. v. First Addl. Income-tax Officer, City Circle II, Madras, (1954) 25 ITR 447 : (AIR 1954 Mad 872 ). the Madras High Court has expressed a similar view and we consider that that view is correct. We accordingly reject the argument of the appellant on this aspect of the case. 6. Lastly, it was submitted by the appellant that the proceedings under S. 34 were invalid because the Income-tax Officer did not entertain the belief that the under assessment was made by reason of omission or failure on the part of the assessee to make a return under S. 22 or to disclose fully and truly all material facts necessary for the first assessment. There is no substance in the argument. The Tribunal has found that there was direct connection or nexus between the assessees omission or failure to make a return and the underassessment made by the Income-tax Officer for the year 1951-52. The High Court has affirmed this finding and concluded that the proceedings under S. 34 (1) (a) of the Act were not defective in law. | 0[ds]It is true that two conditions must be satisfied in order to confer jurisdiction on the Income-tax Officer to issue the notice under S. 34 in respect of assessments beyond the period of four years, but within a period of eight years, from the end of the relevant year. The first condition is that the Income tax Officer must have reason to believe that the income, profits or gains chargeable to income -tax had been under-assessed. The second condition is that he must have reason to believe that such under-assessment had occurred by reason of either (i) omission or failure on the part of an assessee to make a return of his income under S. 22, or (ii) omission or failure on the part of the assessee to disclose fully and truly all the material facts necessary for his assessment for that year. Both these conditions are conditions precedent to be satisfied before the Income-tax Officer acquires jurisdiction to issue a notice under the Section. But the legal position is that if there are in fact some reasonable grounds for the Income-tax Officer to believe that there had been any non-disclosure as regards any fact, which could have a material bearing on the question of under-assessment that would be sufficient to give jurisdiction to the Income tax Officer to issue the notice under S. 34In other words, the sufficiency of the grounds which induced the Income-tax Officer to act is not a justiciable issue. It is of course open for the assessee to contend that the Income-tax Officer did not hold the belief that there had been such non-disclosure. In other words, the existence of the belief can be challenged by the assessee but not the sufficiency of the reasons for the belief. Again the expression "reason to believe" in S. 34 of the Income-tax Act does not mean a purely subjective satisfaction on the part of the Income-tax Officer. The belief must be held in good faith: it cannot be merely a pretence. To put it differently it is open to the Court to examine the question whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the Section. To this limited extent, the action of the Income-tax Officer in starting proceedings under S. 34 of the Act is open to challenge in a Court of law3. In the present case the High Court has pointed out that the Income-tax Officer when examining the relevant material in the proceedings for the assessment year 1955-56 found that he appellant had made investments to the extent of Rs. 39,000 in the account year under question when the income assessed was only Rs. 36,068. On further examination it was discovered that items of house property acquired long before relevant accounting year had been suppressed. The High Court, therefore, held that the Income-tax Officer had reasonable grounds for thinking that there was non-disclosure on the part of the appellant and that there was under-assessment for the assessment year 1951-52The proceedings for assessment or re-assessment under S. 34 (l) (a) of the Income-tax Act start with the issue of a notice and it is only after the service of the notice that the assessee, whose income is sought to be assessed or re-assessed, becomes a party to those proceedings. The earlier stage of the proceeding for recording the reasons of the Income-tax Officer and for obtaining the sanction of the Commissioner are administrative in character and are not quasi judicial. The scheme of S. 34 of the Act is that, if the conditions of the main Section are satisfied a notice has to be issued to the assessee containing all or any of the requirements which may be included in a notice under sub-s. (2) of S. 22. But before issuing the notice, the proviso requires that the officer should record his reasons for initiating action under S. 34 and obtain the sanction of the Commissioner who must be satisfied that the action under S. 34 was justified. There is no requirement in any of the provisions of the Act or any Section laying down as a condition for the initiation of the proceedings that the reasons which induced the Commissioner to accord sanction to proceed under S. 34 must also be communicated to the assesseeThe Tribunal has found that there was direct connection or nexus between the assessees omission or failure to make a return and the underassessment made by the Income-tax Officer for the year 1951-52. The High Court has affirmed this finding and concluded that the proceedings under S. 34 (1) (a) of the Act were not defective in lawIn our opinion there is no substance in any one of these argumentsIn our opinion, the argument of the appellant on this point is misconceived5. In the Presidency Talkies Ltd. v. First Addl.IncometaxOfficer, City Circle II, Madras, (1954) 25 ITR 447 : (AIR 1954 Mad 872 ). the Madras High Court has expressed a similar view and we consider that that view is correct. We accordingly reject the argument of the appellant on this aspect of the caseThere is no substance in the argument. | 0 | 1,698 | 939 | ### Instruction:
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in respect of assessments beyond the period of four years, but within a period of eight years, from the end of the relevant year. The first condition is that the Income tax Officer must have reason to believe that the income, profits or gains chargeable to income -tax had been under-assessed. The second condition is that he must have reason to believe that such under-assessment had occurred by reason of either (i) omission or failure on the part of an assessee to make a return of his income under S. 22, or (ii) omission or failure on the part of the assessee to disclose fully and truly all the material facts necessary for his assessment for that year. Both these conditions are conditions precedent to be satisfied before the Income-tax Officer acquires jurisdiction to issue a notice under the Section. But the legal position is that if there are in fact some reasonable grounds for the Income-tax Officer to believe that there had been any non-disclosure as regards any fact, which could have a material bearing on the question of under-assessment that would be sufficient to give jurisdiction to the Income tax Officer to issue the notice under S. 34. Whether these grounds are adequate or not is not a matter for the Court to investigate. In other words, the sufficiency of the grounds which induced the Income-tax Officer to act is not a justiciable issue. It is of course open for the assessee to contend that the Income-tax Officer did not hold the belief that there had been such non-disclosure. In other words, the existence of the belief can be challenged by the assessee but not the sufficiency of the reasons for the belief. Again the expression "reason to believe" in S. 34 of the Income-tax Act does not mean a purely subjective satisfaction on the part of the Income-tax Officer. The belief must be held in good faith: it cannot be merely a pretence. To put it differently it is open to the Court to examine the question whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the Section. To this limited extent, the action of the Income-tax Officer in starting proceedings under S. 34 of the Act is open to challenge in a Court of law. (See Calcutta Discount Co. Ltd. v. income-tax Officer) (196l) 41 ITR l9l: (AIR) 1961 SC 372) . 3. In the present case the High Court has pointed out that the Income-tax Officer when examining the relevant material in the proceedings for the assessment year 1955-56 found that he appellant had made investments to the extent of Rs. 39,000 in the account year under question when the income assessed was only Rs. 36,068. On further examination it was discovered that items of house property acquired long before relevant accounting year had been suppressed. The High Court, therefore, held that the Income-tax Officer had reasonable grounds for thinking that there was non-disclosure on the part of the appellant and that there was under-assessment for the assessment year 1951-52. 4. It was also contended for the appellant that the Income-tax Officer should have communicated to him the reasons which led him to initiate the proceedings under S. 34 of the Act. It was stated that a request to this effect was made by the appellant to the Income-tax Officer, but the Income-tax Officer declined to disclose the reasons. In our opinion, the argument of the appellant on this point is misconceived. The proceedings for assessment or re-assessment under S. 34 (l) (a) of the Income-tax Act start with the issue of a notice and it is only after the service of the notice that the assessee, whose income is sought to be assessed or re-assessed, becomes a party to those proceedings. The earlier stage of the proceeding for recording the reasons of the Income-tax Officer and for obtaining the sanction of the Commissioner are administrative in character and are not quasi judicial. The scheme of S. 34 of the Act is that, if the conditions of the main Section are satisfied a notice has to be issued to the assessee containing all or any of the requirements which may be included in a notice under sub-s. (2) of S. 22. But before issuing the notice, the proviso requires that the officer should record his reasons for initiating action under S. 34 and obtain the sanction of the Commissioner who must be satisfied that the action under S. 34 was justified. There is no requirement in any of the provisions of the Act or any Section laying down as a condition for the initiation of the proceedings that the reasons which induced the Commissioner to accord sanction to proceed under S. 34 must also be communicated to the assessee. 5. In the Presidency Talkies Ltd. v. First Addl. Income-tax Officer, City Circle II, Madras, (1954) 25 ITR 447 : (AIR 1954 Mad 872 ). the Madras High Court has expressed a similar view and we consider that that view is correct. We accordingly reject the argument of the appellant on this aspect of the case. 6. Lastly, it was submitted by the appellant that the proceedings under S. 34 were invalid because the Income-tax Officer did not entertain the belief that the under assessment was made by reason of omission or failure on the part of the assessee to make a return under S. 22 or to disclose fully and truly all material facts necessary for the first assessment. There is no substance in the argument. The Tribunal has found that there was direct connection or nexus between the assessees omission or failure to make a return and the underassessment made by the Income-tax Officer for the year 1951-52. The High Court has affirmed this finding and concluded that the proceedings under S. 34 (1) (a) of the Act were not defective in law.
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It is true that two conditions must be satisfied in order to confer jurisdiction on the Income-tax Officer to issue the notice under S. 34 in respect of assessments beyond the period of four years, but within a period of eight years, from the end of the relevant year. The first condition is that the Income tax Officer must have reason to believe that the income, profits or gains chargeable to income -tax had been under-assessed. The second condition is that he must have reason to believe that such under-assessment had occurred by reason of either (i) omission or failure on the part of an assessee to make a return of his income under S. 22, or (ii) omission or failure on the part of the assessee to disclose fully and truly all the material facts necessary for his assessment for that year. Both these conditions are conditions precedent to be satisfied before the Income-tax Officer acquires jurisdiction to issue a notice under the Section. But the legal position is that if there are in fact some reasonable grounds for the Income-tax Officer to believe that there had been any non-disclosure as regards any fact, which could have a material bearing on the question of under-assessment that would be sufficient to give jurisdiction to the Income tax Officer to issue the notice under S. 34In other words, the sufficiency of the grounds which induced the Income-tax Officer to act is not a justiciable issue. It is of course open for the assessee to contend that the Income-tax Officer did not hold the belief that there had been such non-disclosure. In other words, the existence of the belief can be challenged by the assessee but not the sufficiency of the reasons for the belief. Again the expression "reason to believe" in S. 34 of the Income-tax Act does not mean a purely subjective satisfaction on the part of the Income-tax Officer. The belief must be held in good faith: it cannot be merely a pretence. To put it differently it is open to the Court to examine the question whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the Section. To this limited extent, the action of the Income-tax Officer in starting proceedings under S. 34 of the Act is open to challenge in a Court of law3. In the present case the High Court has pointed out that the Income-tax Officer when examining the relevant material in the proceedings for the assessment year 1955-56 found that he appellant had made investments to the extent of Rs. 39,000 in the account year under question when the income assessed was only Rs. 36,068. On further examination it was discovered that items of house property acquired long before relevant accounting year had been suppressed. The High Court, therefore, held that the Income-tax Officer had reasonable grounds for thinking that there was non-disclosure on the part of the appellant and that there was under-assessment for the assessment year 1951-52The proceedings for assessment or re-assessment under S. 34 (l) (a) of the Income-tax Act start with the issue of a notice and it is only after the service of the notice that the assessee, whose income is sought to be assessed or re-assessed, becomes a party to those proceedings. The earlier stage of the proceeding for recording the reasons of the Income-tax Officer and for obtaining the sanction of the Commissioner are administrative in character and are not quasi judicial. The scheme of S. 34 of the Act is that, if the conditions of the main Section are satisfied a notice has to be issued to the assessee containing all or any of the requirements which may be included in a notice under sub-s. (2) of S. 22. But before issuing the notice, the proviso requires that the officer should record his reasons for initiating action under S. 34 and obtain the sanction of the Commissioner who must be satisfied that the action under S. 34 was justified. There is no requirement in any of the provisions of the Act or any Section laying down as a condition for the initiation of the proceedings that the reasons which induced the Commissioner to accord sanction to proceed under S. 34 must also be communicated to the assesseeThe Tribunal has found that there was direct connection or nexus between the assessees omission or failure to make a return and the underassessment made by the Income-tax Officer for the year 1951-52. The High Court has affirmed this finding and concluded that the proceedings under S. 34 (1) (a) of the Act were not defective in lawIn our opinion there is no substance in any one of these argumentsIn our opinion, the argument of the appellant on this point is misconceived5. In the Presidency Talkies Ltd. v. First Addl.IncometaxOfficer, City Circle II, Madras, (1954) 25 ITR 447 : (AIR 1954 Mad 872 ). the Madras High Court has expressed a similar view and we consider that that view is correct. We accordingly reject the argument of the appellant on this aspect of the caseThere is no substance in the argument.
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The Special Land Acquisition Officer, Kiadb, Mysore Vs. Anasuya Bai (D) By Lrs. | of the Rajasthan Urban Improvement Act, 1959 and the same contentions were raised, namely, that the acquisition notification gets invalidated for not making an award within a period of two years from the date of notification. Repelling the said contention, the learned Judges held that once the land is vested in the Government, the provisions of Section 11-A are not attracted and the acquisition proceedings will not lapse. (Pratap case[(1996) 3 SCC 1] , SCC para 12 at p. 8 of the Report.)32. In Munithimmaiah v. State of Karnataka, 2002(2) R.C.R.(Civil) 527 : [(2002) 4 SCC 326] this Court held that the provisions of Sections 6 and 11-A of the said Act do not apply to the provisions of the Bangalore Development Authority Act, 1976 (the BDA Act). In SCC para 15 at p. 335 of the Report this Court made a distinction between the purposes of the two enactments and held that all the provisions of the said Act do not apply to the BDA Act. Subsequently, the Constitution Bench of this Court in Offshore Holdings (P) Ltd. v. Bangalore Development Authority [(2011) 3 SCC 139 : (2011) 1 SCC (Civ) 662 : (2011) 1 Scale 533 ] , held that Section 11-A of the said Act does not apply to acquisition under the BDA Act.33. The same principle is attracted to the present case also. Here also on a comparison between the provisions of the said Act and the KIAD Act, we find that those two Acts were enacted to achieve substantially different purposes. Insofar as the KIAD Act is concerned, from its Statement of Objects and Reasons, it is clear that the same was enacted to achieve the following purposes:"It is considered necessary to make provision for the orderly establishment and development of industries in suitable areas in the State. To achieve this object, it is proposed to specify suitable areas for industrial development and establish a board to develop such areas and make available lands therein for establishment of industries."34. The KIAD Act is of course a self-contained code. The said Act is primarily a law regulating acquisition of land for public purpose and for payment of compensation. Acquisition of land under the said Act is not concerned solely with the purpose of planned development of any city. It has to cater to different situations which come within the expanded horizon of public purpose. Recently the Constitution Bench of this Court in Girnar Traders (3) v. State of Maharashtra, 2011(1) Recent Apex Judgments (R.A.J.) 406 : [(2011) 3 SCC 1 : (2011) 1 SCC (Civ) 578 : (2011) 1 Scale 223 ] held that Section 11-A of the said Act does not apply to acquisition under the provisions of the Maharashtra Regional and Town Planning Act, 1966.35. The learned counsel for the appellant has relied on the judgment of this Court in Mariyappa v. State of Karnataka, 1998(4) R.C.R.(Civil) 598 : [(1998) 3 SCC 276] . The said decision was cited for the purpose of contending that Section 11-A is applicable to an acquisition under the KIAD Act. In Mariyappa [(1998) 3 SCC 276] before coming to hold that provision of Section 11-A of the Central Act applies to the Karnataka Acquisition of Land for Grant of House Sites Act, 1972 (hereinafter "the 1972 Act"), this Court held that the 1972 Act is not a self-contained code. The Court also held that the 1972 Act and the Central Act are supplemental to each other to the extent that unless the Central Act supplements the Karnataka Act, the latter cannot function. The Court further held that both the Acts, namely, the 1972 Act and the Central Act deal with the same subject. But in the instant case the KIAD Act is a self-contained code and the Central Act is not supplemental to it. Therefore, the ratio in Mariyappa [(1998) 3 SCC 276] is not attracted to the facts of the present case.36. Following the aforesaid well-settled principles, this Court is of the opinion that there is no substance in the contention of the appellant that acquisition under the KIAD Act lapsed for alleged non-compliance with the provisions of Section 11-A of the said Act. For the reasons aforesaid all the contentions of the appellant, being without any substance, fail and the appeal is dismissed."26. Having regard to the aforesaid raison detre for non-application of the Old LA Act, on the parity of reasoning, provision of Section 24(2) of the New LA Act making Section 11A of the Old LA Act would, obviously, be not applicable. We would like to refer to the judgment in the case of State of M.P. v. M.V. Narasimhan, (1975) 2 SCC 377 in this behalf where following proposition is laid down:"Where a subsequent Act incorporates provisions of a previous Act, then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases:(a) where the subsequent Act and the previous Act are supplemental to each other;(b) where the two Acts are in pari materia;(c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and(d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act."27. We are, therefore, of the opinion that the view taken by the learned Single Judge was correct in law which should not have been interfered with by the Division Bench in the impugned judgment. It is significant to state that insofar as direction of the Single Judge is concerned that was accepted by the appellants herein, as the appellants did not challenge the same. It is the respondents which had filed the intra court appeal. Thus, appellants by their aforesaid conduct, are satisfied with the order of the learned Single Judge in directing them to determine the compensation. | 1[ds]21. From the issuance of notice alone to the respondents under Section 29 of KIAD Act, it cannot be said that respondents had agreed to the compensation. It may be noted that large chunk of land was acquired and there were other land owners as well, despite the respondents. No doubt, proceedings dated 9th September, 2005 indicate that consent agreement is arrived at fixing the compensation at Rs. 6,50,000/- per acre. However, the moot question is as to whether respondents are also consenting parties. The learned Single Judge of the High Court returned a categorical finding that respondents never gave any such consent. For this purpose, reference was made to Rule 10(b) of the Karnataka Land Acquisition Rules, 1965 which states the format in which the said mutual agreement is to be arrived at i.e. Form D. Rule 10(b) states the form of agreement to be executed under sub-section (2) of Section 11 shall be in Form D. No such document is produced by the appellants. Moreover, the appellants also could not show that notice dated 23rd August, 2005 was, in fact, served on the respondents. Therefore, the respondents had not consented to the amount of compensation that was determined in the minutes dated 9th September, 2005. This finding is upheld by the Division Bench in the impugned judgment as well. There is no reason to disagree with this finding.The New Act does not say whether the Act is applicable to the land acquired under the provisions of the Karnataka Land Acquisition Act 1894. What Section 24 says that if the award is not passed U/s 11 of the Act and the compensation is not paid within 5 years or more prior to new act, if the physical possession of the land is taken or not especially the compensation is not paid or deposited in Court such proceedings deem to have been lapsed. In th instant case, it is not case of the respondent that award is not required to be passed under the provisions of LA Act. When the award is required to be passed under LA Act, the respondents cannot contend that the provisions of New Act cannot be made applicable on account of non payment of compensation within a period of five years.This approach of the High Court, we find, to be totally erroneous. In the first instance, matter is not properly appreciated by ignoring the important aspects mentioned in para 24 above. Secondly, effect of non-applicability of Section 11A of the Old LA Act is not rightly understood. The High Court was not oblivious of the judgment of this Court in M. Nagabhushanas case which is referred by it in the aforesaid discussion itself. This judgment categorically holds that once the proceedings are initiated under the KIAD Act, Section 11A of the Old LA Act would not be applicable. Such an opinion of the Court is based on the followingThe appellant has not challenged the validity of the aforesaid provisions. Therefore, on a combined reading of the provisions of Sections 28(4) and 28(5) of the KIAD Act, it is clear that on the publication of the Notification under Section 28(4) of the KIAD Act i.e. from 30-3-2004, the land in question vested in the State free from all encumbrances by operation of Section 28(5) of the KIAD Act, whereas the land acquired under the said Act vests only under Section 16 thereof, which runs as under:"16.Power to take possession.-When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.The learned counsel for the appellant has relied on the judgment of this Court in Mariyappa v. State of Karnataka, 1998(4) R.C.R.(Civil) 598 : [(1998) 3 SCC 276] . The said decision was cited for the purpose of contending that Section 11-A is applicable to an acquisition under the KIAD Act. In Mariyappa [(1998) 3 SCC 276] before coming to hold that provision of Section 11-A of the Central Act applies to the Karnataka Acquisition of Land for Grant of House Sites Act, 1972 (hereinafter "the 1972 Act"), this Court held that the 1972 Act is not a self-contained code. The Court also held that the 1972 Act and the Central Act are supplemental to each other to the extent that unless the Central Act supplements the Karnataka Act, the latter cannot function. The Court further held that both the Acts, namely, the 1972 Act and the Central Act deal with the same subject. But in the instant case the KIAD Act is a self-contained code and the Central Act is not supplemental to it. Therefore, the ratio in Mariyappa [(1998) 3 SCC 276] is not attracted to the facts of the present case.36. Following the aforesaid well-settled principles, this Court is of the opinion that there is no substance in the contention of the appellant that acquisition under the KIAD Act lapsed for alleged non-compliance with the provisions of Section 11-A of the said Act. For the reasons aforesaid all the contentions of the appellant, being without any substance, fail and the appeal is dismissed.Having regard to the aforesaid raison detre for non-application of the Old LA Act, on the parity of reasoning, provision of Section 24(2) of the New LA Act making Section 11A of the Old LA Act would, obviously, be not applicable. We would like to refer to the judgment in the case of State of M.P. v. M.V. Narasimhan, (1975) 2 SCC 377 in this behalf where following proposition is laida subsequent Act incorporates provisions of a previous Act, then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases:(a) where the subsequent Act and the previous Act are supplemental to each other;(b) where the two Acts are in pari materia;(c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and(d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act.We are, therefore, of the opinion that the view taken by the learned Single Judge was correct in law which should not have been interfered with by the Division Bench in the impugned judgment. It is significant to state that insofar as direction of the Single Judge is concerned that was accepted by the appellants herein, as the appellants did not challenge the same. It is the respondents which had filed the intra court appeal. Thus, appellants by their aforesaid conduct, are satisfied with the order of the learned Single Judge in directing them to determine the | 1 | 7,207 | 1,301 | ### Instruction:
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of the Rajasthan Urban Improvement Act, 1959 and the same contentions were raised, namely, that the acquisition notification gets invalidated for not making an award within a period of two years from the date of notification. Repelling the said contention, the learned Judges held that once the land is vested in the Government, the provisions of Section 11-A are not attracted and the acquisition proceedings will not lapse. (Pratap case[(1996) 3 SCC 1] , SCC para 12 at p. 8 of the Report.)32. In Munithimmaiah v. State of Karnataka, 2002(2) R.C.R.(Civil) 527 : [(2002) 4 SCC 326] this Court held that the provisions of Sections 6 and 11-A of the said Act do not apply to the provisions of the Bangalore Development Authority Act, 1976 (the BDA Act). In SCC para 15 at p. 335 of the Report this Court made a distinction between the purposes of the two enactments and held that all the provisions of the said Act do not apply to the BDA Act. Subsequently, the Constitution Bench of this Court in Offshore Holdings (P) Ltd. v. Bangalore Development Authority [(2011) 3 SCC 139 : (2011) 1 SCC (Civ) 662 : (2011) 1 Scale 533 ] , held that Section 11-A of the said Act does not apply to acquisition under the BDA Act.33. The same principle is attracted to the present case also. Here also on a comparison between the provisions of the said Act and the KIAD Act, we find that those two Acts were enacted to achieve substantially different purposes. Insofar as the KIAD Act is concerned, from its Statement of Objects and Reasons, it is clear that the same was enacted to achieve the following purposes:"It is considered necessary to make provision for the orderly establishment and development of industries in suitable areas in the State. To achieve this object, it is proposed to specify suitable areas for industrial development and establish a board to develop such areas and make available lands therein for establishment of industries."34. The KIAD Act is of course a self-contained code. The said Act is primarily a law regulating acquisition of land for public purpose and for payment of compensation. Acquisition of land under the said Act is not concerned solely with the purpose of planned development of any city. It has to cater to different situations which come within the expanded horizon of public purpose. Recently the Constitution Bench of this Court in Girnar Traders (3) v. State of Maharashtra, 2011(1) Recent Apex Judgments (R.A.J.) 406 : [(2011) 3 SCC 1 : (2011) 1 SCC (Civ) 578 : (2011) 1 Scale 223 ] held that Section 11-A of the said Act does not apply to acquisition under the provisions of the Maharashtra Regional and Town Planning Act, 1966.35. The learned counsel for the appellant has relied on the judgment of this Court in Mariyappa v. State of Karnataka, 1998(4) R.C.R.(Civil) 598 : [(1998) 3 SCC 276] . The said decision was cited for the purpose of contending that Section 11-A is applicable to an acquisition under the KIAD Act. In Mariyappa [(1998) 3 SCC 276] before coming to hold that provision of Section 11-A of the Central Act applies to the Karnataka Acquisition of Land for Grant of House Sites Act, 1972 (hereinafter "the 1972 Act"), this Court held that the 1972 Act is not a self-contained code. The Court also held that the 1972 Act and the Central Act are supplemental to each other to the extent that unless the Central Act supplements the Karnataka Act, the latter cannot function. The Court further held that both the Acts, namely, the 1972 Act and the Central Act deal with the same subject. But in the instant case the KIAD Act is a self-contained code and the Central Act is not supplemental to it. Therefore, the ratio in Mariyappa [(1998) 3 SCC 276] is not attracted to the facts of the present case.36. Following the aforesaid well-settled principles, this Court is of the opinion that there is no substance in the contention of the appellant that acquisition under the KIAD Act lapsed for alleged non-compliance with the provisions of Section 11-A of the said Act. For the reasons aforesaid all the contentions of the appellant, being without any substance, fail and the appeal is dismissed."26. Having regard to the aforesaid raison detre for non-application of the Old LA Act, on the parity of reasoning, provision of Section 24(2) of the New LA Act making Section 11A of the Old LA Act would, obviously, be not applicable. We would like to refer to the judgment in the case of State of M.P. v. M.V. Narasimhan, (1975) 2 SCC 377 in this behalf where following proposition is laid down:"Where a subsequent Act incorporates provisions of a previous Act, then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases:(a) where the subsequent Act and the previous Act are supplemental to each other;(b) where the two Acts are in pari materia;(c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and(d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act."27. We are, therefore, of the opinion that the view taken by the learned Single Judge was correct in law which should not have been interfered with by the Division Bench in the impugned judgment. It is significant to state that insofar as direction of the Single Judge is concerned that was accepted by the appellants herein, as the appellants did not challenge the same. It is the respondents which had filed the intra court appeal. Thus, appellants by their aforesaid conduct, are satisfied with the order of the learned Single Judge in directing them to determine the compensation.
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to be executed under sub-section (2) of Section 11 shall be in Form D. No such document is produced by the appellants. Moreover, the appellants also could not show that notice dated 23rd August, 2005 was, in fact, served on the respondents. Therefore, the respondents had not consented to the amount of compensation that was determined in the minutes dated 9th September, 2005. This finding is upheld by the Division Bench in the impugned judgment as well. There is no reason to disagree with this finding.The New Act does not say whether the Act is applicable to the land acquired under the provisions of the Karnataka Land Acquisition Act 1894. What Section 24 says that if the award is not passed U/s 11 of the Act and the compensation is not paid within 5 years or more prior to new act, if the physical possession of the land is taken or not especially the compensation is not paid or deposited in Court such proceedings deem to have been lapsed. In th instant case, it is not case of the respondent that award is not required to be passed under the provisions of LA Act. When the award is required to be passed under LA Act, the respondents cannot contend that the provisions of New Act cannot be made applicable on account of non payment of compensation within a period of five years.This approach of the High Court, we find, to be totally erroneous. In the first instance, matter is not properly appreciated by ignoring the important aspects mentioned in para 24 above. Secondly, effect of non-applicability of Section 11A of the Old LA Act is not rightly understood. The High Court was not oblivious of the judgment of this Court in M. Nagabhushanas case which is referred by it in the aforesaid discussion itself. This judgment categorically holds that once the proceedings are initiated under the KIAD Act, Section 11A of the Old LA Act would not be applicable. Such an opinion of the Court is based on the followingThe appellant has not challenged the validity of the aforesaid provisions. Therefore, on a combined reading of the provisions of Sections 28(4) and 28(5) of the KIAD Act, it is clear that on the publication of the Notification under Section 28(4) of the KIAD Act i.e. from 30-3-2004, the land in question vested in the State free from all encumbrances by operation of Section 28(5) of the KIAD Act, whereas the land acquired under the said Act vests only under Section 16 thereof, which runs as under:"16.Power to take possession.-When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.The learned counsel for the appellant has relied on the judgment of this Court in Mariyappa v. State of Karnataka, 1998(4) R.C.R.(Civil) 598 : [(1998) 3 SCC 276] . The said decision was cited for the purpose of contending that Section 11-A is applicable to an acquisition under the KIAD Act. In Mariyappa [(1998) 3 SCC 276] before coming to hold that provision of Section 11-A of the Central Act applies to the Karnataka Acquisition of Land for Grant of House Sites Act, 1972 (hereinafter "the 1972 Act"), this Court held that the 1972 Act is not a self-contained code. The Court also held that the 1972 Act and the Central Act are supplemental to each other to the extent that unless the Central Act supplements the Karnataka Act, the latter cannot function. The Court further held that both the Acts, namely, the 1972 Act and the Central Act deal with the same subject. But in the instant case the KIAD Act is a self-contained code and the Central Act is not supplemental to it. Therefore, the ratio in Mariyappa [(1998) 3 SCC 276] is not attracted to the facts of the present case.36. Following the aforesaid well-settled principles, this Court is of the opinion that there is no substance in the contention of the appellant that acquisition under the KIAD Act lapsed for alleged non-compliance with the provisions of Section 11-A of the said Act. For the reasons aforesaid all the contentions of the appellant, being without any substance, fail and the appeal is dismissed.Having regard to the aforesaid raison detre for non-application of the Old LA Act, on the parity of reasoning, provision of Section 24(2) of the New LA Act making Section 11A of the Old LA Act would, obviously, be not applicable. We would like to refer to the judgment in the case of State of M.P. v. M.V. Narasimhan, (1975) 2 SCC 377 in this behalf where following proposition is laida subsequent Act incorporates provisions of a previous Act, then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases:(a) where the subsequent Act and the previous Act are supplemental to each other;(b) where the two Acts are in pari materia;(c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and(d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act.We are, therefore, of the opinion that the view taken by the learned Single Judge was correct in law which should not have been interfered with by the Division Bench in the impugned judgment. It is significant to state that insofar as direction of the Single Judge is concerned that was accepted by the appellants herein, as the appellants did not challenge the same. It is the respondents which had filed the intra court appeal. Thus, appellants by their aforesaid conduct, are satisfied with the order of the learned Single Judge in directing them to determine the
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Durga Prasanna Vs. Arundhati Tripathy | cruelty. When leave was granted, this Court observed that they are granting leave because it appears to them that the marriage between the parties was in all practical purposes dead and the enforced continuity of the marriage will only mean that the parties will spend more years in bitterness against each other. Since the husband was in a position to provide reasonable maintenance or permanent alimony, this Court granted special leave. At the time of final hearing, this Court deleted the findings and has, however, decided not to interfere with the order passed by a Division Bench of the Bombay High Court. The husband, on the persuasion of this Court, agreed to provide a one bed-room flat to the wife in a locality where it can be available between Rs.3 and 4 lacs. Therefore, while dismissing the appeal, this Court directed the husband to purchase a flat for the wife and further deposit a sum of Rs.2 lacs by means of a demand draft in the name of the appellant with the Family Court. 26. In V. Bhagat v. D. Bhagat (Mrs) , 1994 (1) SCC 337 : AIR 1994 SC 710 , this Court while allowing the marriage to dissolve on ground of mental cruelty and in view of the irretrievable breakdown of marriage and the peculiar circumstances of the case, held that the allegations of adultery against the wife were not proved thereby vindicating her honour and character. This Court while exploring the other alternative observed that the divorce petition has been pending for more than 8 years and a good part of the lives of both the parties has been consumed in this litigation and yet, the end is not in sight and that the allegations made against each other in the petition and the counter by the parties will go to show that living together is out of question and rapprochement is not in the realm of possibility. This Court at page 720 of AIR has observed thus: “Before parting with this case, we think it necessary to append a clarification. Merely because there are allegations and counter allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleading (and other admitted material) without a full trial. Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinising the evide nce on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluable mess , when the Court finds it in the interest of both parties.” 27. The decision Romesh Chander v. Savitri AIR 1995 SC 851 : 1995 AIR SCW 647, is yet another case where this Court in its powers under Article 142 of the Constitution directed the dissolution of the marriage subject to the transfer of the house of the husband in the name of the wife. In that case, the parties had not enjoyed the company of each other as husband and wife for 25 years, this is the second round of litigation which routing through the trial Court and the High Court has reached the Supreme Court. The appeal was based on cruelty. Both the Courts below have found that the allegation was not proved and consequently it could not be made the basis for claiming divorce. However, this Court after following the earlier decisions and in exercise of its power under Article 142 of the Constitution directed the marriage between the appellant and the respondent shall stand dissolved subject to the appellant transferring the house in the name of his wife within four months from the date of the order and the dissolution shall come into effect when the house is transferred and possession is handed over to the wife. 28. The facts and circumstances in the above three cases disclose that reunion is impossible. Our case on hand is one such. It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the wife through her learned counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot. 29. Before parting with this case, we think it necessary to say the following: Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. The Family Court has directed the appellant to pay a sum of Rs.50,000 towards permanent alimony to the respondent and pursuant to such direction the appellant had deposited the amount by way of bank draft. Considering the status of parties and the economic condition of the appellant who is facing criminal prosecution and out of job and also considering the status of the wife who is employed, we feel that a further sum of Rs.1 lakh by way of permanent alimony would meet the ends of justice. This shall be paid by the appellant within 3 months from today by an account payee demand draft drawn in fa vour of the respondent – Arundhati Tripathy and the dissolution shall come into effect when the demand draft is drawn and furnished to the respondent. 30. | 1[ds]Both the Family Court as well as the High Court made efforts to bring about a reconciliation/rapprochement between the parties. The Family Court in this regard gave a clear finding that in spite of good deal of endeavour to effect a reconciliation the same could not be effected because of the insistence of the respondent to remain separately from herIt was totally an impracticable solution.This apart, since October, 1991 till date the respondent has not taken any steps from her side to go back to her matrimonial home.The Family Court has given cogent and convincing reasons for passing the decree of divorce in favour of the appellant. Having been convinced that there was no chance of reunion or reconciliation between the parties, more so because of the complaint filed by the respondent before the Mahila Commission, the Family Court with a view to put a quietus to the litigation inter se and the bitterness between the parties rightly passed the decree of divorce.In our view that 14 years have elapsed since the appellant and the respondent have been separated and there is no possibility of the appellant and the respondent resuming the normal marital life even though the respondent is willing to join her husband. There has been an irretrievable breakdown of marriage between the appellant the respondent. The respondent has also preferred to keep silent about her absence during the death of herand during the marriage ceremony of herThe complaint before the Mahila Commission does not implicate the appellant for dowry harassment though the respondent in her evidence before the Family Court has alleged dowry harassment by the appellant. It is pertinent to mention here that a complaint before the Mahila Commission was lodged after 7 years of the marriage alleging torture for dowry by theaw during the initial years of marriage. The said complaint was filed in 1998 that is only after notice was issued by the Family Court on 27.3.1997 on the application filed by the appellant under Section 13 of the Hindu Marriage Act. The Family Court, on examination of the evidence on record, and having observed the demeanor of the witnesses concluded that the appellant had proved that the respondent is not only cruel but also deserted him since more than 7 years. The desertion as on date is more than 14 years and, therefore, in our view there has been an irretrievable breakdown of marriage between the appellant and the respondent. Even the Conciliation Officer before the Family Court gave its report that the respondent was willing to live with the appellant on the condition that they lived separately from his family. The respondent in her evidence had not disputed the fact that attempts have been made by the appellant and his family to bring her back to the matrimonial home for leading a conjugal life with the appellant. Apart from that, relationship between the appellant and the respondent have become strained over the years due to the desertion of the appellant by the respondent for several years. Under the circumstances, the appellant had proved before the Family Court both the factum of separation as well as animus deserendi which are the essential elements of desertion. The evidence adduced by the respondent before the Family Court belies her stand taken by her before the Family Court. Enough instances of cruelty meted out by the respondent to the appellant were cited before the Family Court and the Family Court being convinced granted the decree of divorce. The harassment by theof the respondent was ansince the same was alleged after a gap of 7 years of marriage and desertion by the respondent. The appellant having failed in his efforts to get back the respondent to her matrimonial home and having faced the trauma of performing the last rites of his deceased father without the respondent and having faced themeted out by the respondent to him and his family had, in our opinion, no other efficacious remedy but to approach the Family Court for decree of divorce.The submission made by Mr. Ranjan Mukherjee that the marriage between the appellant and the respondent has for all practical purposes become dead, that there can be no chance of being retrieved and that it was better to bring the marriage to an end merits acceptance and force.The facts and circumstances in the above three cases disclose that reunion is impossible. Our case on hand is one such. It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the wife through her learned counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot.e facts and circumstances in the above three cases disclose that reunion is impossible. Our case on hand is one such. It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the wife through her learned counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot. | 1 | 4,963 | 973 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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cruelty. When leave was granted, this Court observed that they are granting leave because it appears to them that the marriage between the parties was in all practical purposes dead and the enforced continuity of the marriage will only mean that the parties will spend more years in bitterness against each other. Since the husband was in a position to provide reasonable maintenance or permanent alimony, this Court granted special leave. At the time of final hearing, this Court deleted the findings and has, however, decided not to interfere with the order passed by a Division Bench of the Bombay High Court. The husband, on the persuasion of this Court, agreed to provide a one bed-room flat to the wife in a locality where it can be available between Rs.3 and 4 lacs. Therefore, while dismissing the appeal, this Court directed the husband to purchase a flat for the wife and further deposit a sum of Rs.2 lacs by means of a demand draft in the name of the appellant with the Family Court. 26. In V. Bhagat v. D. Bhagat (Mrs) , 1994 (1) SCC 337 : AIR 1994 SC 710 , this Court while allowing the marriage to dissolve on ground of mental cruelty and in view of the irretrievable breakdown of marriage and the peculiar circumstances of the case, held that the allegations of adultery against the wife were not proved thereby vindicating her honour and character. This Court while exploring the other alternative observed that the divorce petition has been pending for more than 8 years and a good part of the lives of both the parties has been consumed in this litigation and yet, the end is not in sight and that the allegations made against each other in the petition and the counter by the parties will go to show that living together is out of question and rapprochement is not in the realm of possibility. This Court at page 720 of AIR has observed thus: “Before parting with this case, we think it necessary to append a clarification. Merely because there are allegations and counter allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleading (and other admitted material) without a full trial. Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinising the evide nce on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluable mess , when the Court finds it in the interest of both parties.” 27. The decision Romesh Chander v. Savitri AIR 1995 SC 851 : 1995 AIR SCW 647, is yet another case where this Court in its powers under Article 142 of the Constitution directed the dissolution of the marriage subject to the transfer of the house of the husband in the name of the wife. In that case, the parties had not enjoyed the company of each other as husband and wife for 25 years, this is the second round of litigation which routing through the trial Court and the High Court has reached the Supreme Court. The appeal was based on cruelty. Both the Courts below have found that the allegation was not proved and consequently it could not be made the basis for claiming divorce. However, this Court after following the earlier decisions and in exercise of its power under Article 142 of the Constitution directed the marriage between the appellant and the respondent shall stand dissolved subject to the appellant transferring the house in the name of his wife within four months from the date of the order and the dissolution shall come into effect when the house is transferred and possession is handed over to the wife. 28. The facts and circumstances in the above three cases disclose that reunion is impossible. Our case on hand is one such. It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the wife through her learned counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot. 29. Before parting with this case, we think it necessary to say the following: Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. The Family Court has directed the appellant to pay a sum of Rs.50,000 towards permanent alimony to the respondent and pursuant to such direction the appellant had deposited the amount by way of bank draft. Considering the status of parties and the economic condition of the appellant who is facing criminal prosecution and out of job and also considering the status of the wife who is employed, we feel that a further sum of Rs.1 lakh by way of permanent alimony would meet the ends of justice. This shall be paid by the appellant within 3 months from today by an account payee demand draft drawn in fa vour of the respondent – Arundhati Tripathy and the dissolution shall come into effect when the demand draft is drawn and furnished to the respondent. 30.
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Both the Family Court as well as the High Court made efforts to bring about a reconciliation/rapprochement between the parties. The Family Court in this regard gave a clear finding that in spite of good deal of endeavour to effect a reconciliation the same could not be effected because of the insistence of the respondent to remain separately from herIt was totally an impracticable solution.This apart, since October, 1991 till date the respondent has not taken any steps from her side to go back to her matrimonial home.The Family Court has given cogent and convincing reasons for passing the decree of divorce in favour of the appellant. Having been convinced that there was no chance of reunion or reconciliation between the parties, more so because of the complaint filed by the respondent before the Mahila Commission, the Family Court with a view to put a quietus to the litigation inter se and the bitterness between the parties rightly passed the decree of divorce.In our view that 14 years have elapsed since the appellant and the respondent have been separated and there is no possibility of the appellant and the respondent resuming the normal marital life even though the respondent is willing to join her husband. There has been an irretrievable breakdown of marriage between the appellant the respondent. The respondent has also preferred to keep silent about her absence during the death of herand during the marriage ceremony of herThe complaint before the Mahila Commission does not implicate the appellant for dowry harassment though the respondent in her evidence before the Family Court has alleged dowry harassment by the appellant. It is pertinent to mention here that a complaint before the Mahila Commission was lodged after 7 years of the marriage alleging torture for dowry by theaw during the initial years of marriage. The said complaint was filed in 1998 that is only after notice was issued by the Family Court on 27.3.1997 on the application filed by the appellant under Section 13 of the Hindu Marriage Act. The Family Court, on examination of the evidence on record, and having observed the demeanor of the witnesses concluded that the appellant had proved that the respondent is not only cruel but also deserted him since more than 7 years. The desertion as on date is more than 14 years and, therefore, in our view there has been an irretrievable breakdown of marriage between the appellant and the respondent. Even the Conciliation Officer before the Family Court gave its report that the respondent was willing to live with the appellant on the condition that they lived separately from his family. The respondent in her evidence had not disputed the fact that attempts have been made by the appellant and his family to bring her back to the matrimonial home for leading a conjugal life with the appellant. Apart from that, relationship between the appellant and the respondent have become strained over the years due to the desertion of the appellant by the respondent for several years. Under the circumstances, the appellant had proved before the Family Court both the factum of separation as well as animus deserendi which are the essential elements of desertion. The evidence adduced by the respondent before the Family Court belies her stand taken by her before the Family Court. Enough instances of cruelty meted out by the respondent to the appellant were cited before the Family Court and the Family Court being convinced granted the decree of divorce. The harassment by theof the respondent was ansince the same was alleged after a gap of 7 years of marriage and desertion by the respondent. The appellant having failed in his efforts to get back the respondent to her matrimonial home and having faced the trauma of performing the last rites of his deceased father without the respondent and having faced themeted out by the respondent to him and his family had, in our opinion, no other efficacious remedy but to approach the Family Court for decree of divorce.The submission made by Mr. Ranjan Mukherjee that the marriage between the appellant and the respondent has for all practical purposes become dead, that there can be no chance of being retrieved and that it was better to bring the marriage to an end merits acceptance and force.The facts and circumstances in the above three cases disclose that reunion is impossible. Our case on hand is one such. It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the wife through her learned counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot.e facts and circumstances in the above three cases disclose that reunion is impossible. Our case on hand is one such. It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the wife through her learned counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot.
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Commissioner Of Central Excise, Mysore Vs. M/S. Tvs Motors Company Ltd | reported in 1978 (2) E.L.T. (J 444) S.C. that the price which is relevant for the purpose of Excise duty was the price when the good first entered in the stream of trade is required to be accepted. In the present case, when the petitioners sell the car to the dealer, the goods enter the stream of trade for the first time and, therefore, the amount at which the car is sold to the dealer would be the assessable value on which the Excise duty would be payable. In the present case, the expenses incurred by the dealer for PDI and said services has nothing to do with the term "servicing” mentioned in the transaction value and as such, the said expenses cannot be added to assessable value.45. On consideration of the Clause 7 of Circular dated 1st July, 2000, it is apparent that the respondents have brought into existence a deeming provision that is to say the respondents have treated all the manufacturers of cars on one platform and by fiction taken a decision to add the expenses incurred towards PDI and said services in the assessable value. It will have to be mentioned that in all cases where the expenses incurred towards PDI and said services are solely borne by the dealer and the manufacturer like petitioners have nothing to do with the said expenses then adding those expenses in the assessable value would be contrary to the provisions of Section 4(1)(a) r/w Section 4(3)(d) of the said Act. Looking to the facts and circumstances of this case, the respondents have not been able to place on record any material to show that the amount incurred towards PDI and said services can fall within the definition of the transaction value.” We agree with the enunciation of legal position stated by the High Court. 16. We have also to keep in mind these cases pertain to the period post 2000. It is also to be borne in mind that the clarification very categorically proceeded on the basis that the services were provided free by the dealer on behalf of the assessee and the same was during the warranty period. The clarification given, keeping in mind the aforesaid two features, makes all the difference inasmuch in these cases, we find that the services which are provided by the dealers are on their behalf and not on behalf of the assessees. The facts disclosed that the amount which was reimbursed by the assessee to their dealers pertaining to free service was being claimed as abatement in relation to the normal transaction value. It was one of the contention of these assessees that free service charges is a post sale activities and all post sale activities continued to be excludable in determining transaction value. 17. On the other hand, we would like to refer to Circular dated 12.05.2000 which was issued contemporaneously with the amendment in Section 4. It expressly states that amount should be recovered from the buyer by the assessee-manufacturer and makes the following reading in this behalf: “2.2 Definition of transaction value has also been modified to make it more transparent. Any amount paid by the buyer himself or on his behalf to the assessee by reason of, or in connection with the sale, would form part of the transaction value. Any amount that is charged or recovered from the buyer on account of factors like advertising or publicity, marketing and selling organization expenses, storage and outward handling etc. will also be part of the transaction value. In fact, most of the charges that are recovered on account of the specific activities by advertising or publicity, etc. mentioned in the definition of transaction value are includable in the computation of value under the existing section.4. As such, the definition of transaction value does not seem to be divergently wider in content and scope from the interpretation of value under existing Section 4. The definition of transaction value should help set at rest any doubt regarding amounts that are charged or recovered from the buyer in respect of specific kind of operations done by the assessees. In essence, whatever is recovered from the buyer by reason of, or in connection with the sale, whether payable at the time of sale or at any other time is included in the transaction value.… (emphasis supplied)” 18. This very position is reiterated by the Board in its circular Letter F. No. 354/81/2000-TRU dated 30.06.2000 which gives clause by clause explanation of the Section. Relevant extract from the same is reproduced herewith as under: “6. ...It may also be noted that where the assessee charges an amount as price for his goods, the amount so charged and paid or payable for the goods will form the assessable value. If, however, in addition to the amount charged as price from the buyer, the assessee also recovers any other amount by reason of sale or in connection with sale, then such amount shall also form part of the transaction value for valuation and assessment purposes. Thus if assessee splits up his pricing system and charges a price for the goods and separately charges for packaging, the packaging charges will also form part of assessable value as it is a charge in connection with production and sale of the goods recovered from the buyer…7. It would be seen from the definition of transaction value that any amount which is paid or payable by the buyer to or on behalf of the assessee, on account of the factum of sale of goods, then such amount cannot be claimed to be not part of the transaction value. In other words, if, for example, an assessee recovers advertising charges or publicity charges from his buyers, either at the time of sale of goods or even subsequently, the assessee cannot claim that such charges are not includable in the transaction value. The law recognizes such payment to be part of the transaction value that is assessable value for those particular transactions.” | 1[ds]8. What follows from the above is that where manufacturer himself does the ASS and incurs any expenditure thereon, the same is not deductible from the price charged by him from his buyer. Likewise, where the manufacturer has sold his goods to his dealer and wholesale dealer thereafter does ASS to the customer and incurs expenditure therefore, it cannot be added back to the sale price charged by the manufacturer from the dealer for computing the assessable value. This is more so, where the ASS is done by the dealer many weeks after the goods have been sold to him by the manufacturer. Such a post-sale activity undertaken by the dealer is not relevant for the purpose of excise since the goods have already been marketed to the dealer.The expression any amount that the buyer is liable to pay to is of significance. This expression shows that, apart from the price of the goods, the buyer should also be liable to pay an additional amount to the manufacturer/seller. In other words, the sale of the goods would not be made unless the buyer is also to pay an additional amount to the manufacturer, apart from the price of the goods. This is also supported by use of expression by reason or or in connection with the sale of the goods. The expression in connection with the sale of the goods would only mean that but for the payment of the additional amount, the sale of the goods would not take place. When we keep in mind the aforesaid legal position, we find no error in the view taken by the Tribunal giving benefit to the assessee. Both the sides were in unison in accepting the position that no major change had been incorporated w.e.f. 01.07.2000 with emphasis on the different transaction value from the assessable value, the essence of valuation principles had not undergone major change and the decisions delivered by this Court with regard to unamended provision on the principle of valuation were still applicable in determining the transaction value under the new provisions of Section 4 of the Act red with Central Excise Valuation (Determination of price of Excisable Goods) Rules, 2000. In fact, the Order-in-Original in M/s. TVS Motors Company Ltd. or in other cases itself proceeds on that basis.We have also to keep in mind these cases pertain to the period post 2000. It is also to be borne in mind that the clarification very categorically proceeded on the basis that the services were provided free by the dealer on behalf of the assessee and the same was during the warranty period. The clarification given, keeping in mind the aforesaid two features, makes all the difference inasmuch in these cases, we find that the services which are provided by the dealers are on their behalf and not on behalf of the assessees. The facts disclosed that the amount which was reimbursed by the assessee to their dealers pertaining to free service was being claimed as abatement in relation to the normal transaction value. It was one of the contention of these assessees that free service charges is a post sale activities and all post sale activities continued to be excludable in determining transaction value. | 1 | 7,308 | 579 | ### 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:
reported in 1978 (2) E.L.T. (J 444) S.C. that the price which is relevant for the purpose of Excise duty was the price when the good first entered in the stream of trade is required to be accepted. In the present case, when the petitioners sell the car to the dealer, the goods enter the stream of trade for the first time and, therefore, the amount at which the car is sold to the dealer would be the assessable value on which the Excise duty would be payable. In the present case, the expenses incurred by the dealer for PDI and said services has nothing to do with the term "servicing” mentioned in the transaction value and as such, the said expenses cannot be added to assessable value.45. On consideration of the Clause 7 of Circular dated 1st July, 2000, it is apparent that the respondents have brought into existence a deeming provision that is to say the respondents have treated all the manufacturers of cars on one platform and by fiction taken a decision to add the expenses incurred towards PDI and said services in the assessable value. It will have to be mentioned that in all cases where the expenses incurred towards PDI and said services are solely borne by the dealer and the manufacturer like petitioners have nothing to do with the said expenses then adding those expenses in the assessable value would be contrary to the provisions of Section 4(1)(a) r/w Section 4(3)(d) of the said Act. Looking to the facts and circumstances of this case, the respondents have not been able to place on record any material to show that the amount incurred towards PDI and said services can fall within the definition of the transaction value.” We agree with the enunciation of legal position stated by the High Court. 16. We have also to keep in mind these cases pertain to the period post 2000. It is also to be borne in mind that the clarification very categorically proceeded on the basis that the services were provided free by the dealer on behalf of the assessee and the same was during the warranty period. The clarification given, keeping in mind the aforesaid two features, makes all the difference inasmuch in these cases, we find that the services which are provided by the dealers are on their behalf and not on behalf of the assessees. The facts disclosed that the amount which was reimbursed by the assessee to their dealers pertaining to free service was being claimed as abatement in relation to the normal transaction value. It was one of the contention of these assessees that free service charges is a post sale activities and all post sale activities continued to be excludable in determining transaction value. 17. On the other hand, we would like to refer to Circular dated 12.05.2000 which was issued contemporaneously with the amendment in Section 4. It expressly states that amount should be recovered from the buyer by the assessee-manufacturer and makes the following reading in this behalf: “2.2 Definition of transaction value has also been modified to make it more transparent. Any amount paid by the buyer himself or on his behalf to the assessee by reason of, or in connection with the sale, would form part of the transaction value. Any amount that is charged or recovered from the buyer on account of factors like advertising or publicity, marketing and selling organization expenses, storage and outward handling etc. will also be part of the transaction value. In fact, most of the charges that are recovered on account of the specific activities by advertising or publicity, etc. mentioned in the definition of transaction value are includable in the computation of value under the existing section.4. As such, the definition of transaction value does not seem to be divergently wider in content and scope from the interpretation of value under existing Section 4. The definition of transaction value should help set at rest any doubt regarding amounts that are charged or recovered from the buyer in respect of specific kind of operations done by the assessees. In essence, whatever is recovered from the buyer by reason of, or in connection with the sale, whether payable at the time of sale or at any other time is included in the transaction value.… (emphasis supplied)” 18. This very position is reiterated by the Board in its circular Letter F. No. 354/81/2000-TRU dated 30.06.2000 which gives clause by clause explanation of the Section. Relevant extract from the same is reproduced herewith as under: “6. ...It may also be noted that where the assessee charges an amount as price for his goods, the amount so charged and paid or payable for the goods will form the assessable value. If, however, in addition to the amount charged as price from the buyer, the assessee also recovers any other amount by reason of sale or in connection with sale, then such amount shall also form part of the transaction value for valuation and assessment purposes. Thus if assessee splits up his pricing system and charges a price for the goods and separately charges for packaging, the packaging charges will also form part of assessable value as it is a charge in connection with production and sale of the goods recovered from the buyer…7. It would be seen from the definition of transaction value that any amount which is paid or payable by the buyer to or on behalf of the assessee, on account of the factum of sale of goods, then such amount cannot be claimed to be not part of the transaction value. In other words, if, for example, an assessee recovers advertising charges or publicity charges from his buyers, either at the time of sale of goods or even subsequently, the assessee cannot claim that such charges are not includable in the transaction value. The law recognizes such payment to be part of the transaction value that is assessable value for those particular transactions.”
### Response:
1
### Explanation:
8. What follows from the above is that where manufacturer himself does the ASS and incurs any expenditure thereon, the same is not deductible from the price charged by him from his buyer. Likewise, where the manufacturer has sold his goods to his dealer and wholesale dealer thereafter does ASS to the customer and incurs expenditure therefore, it cannot be added back to the sale price charged by the manufacturer from the dealer for computing the assessable value. This is more so, where the ASS is done by the dealer many weeks after the goods have been sold to him by the manufacturer. Such a post-sale activity undertaken by the dealer is not relevant for the purpose of excise since the goods have already been marketed to the dealer.The expression any amount that the buyer is liable to pay to is of significance. This expression shows that, apart from the price of the goods, the buyer should also be liable to pay an additional amount to the manufacturer/seller. In other words, the sale of the goods would not be made unless the buyer is also to pay an additional amount to the manufacturer, apart from the price of the goods. This is also supported by use of expression by reason or or in connection with the sale of the goods. The expression in connection with the sale of the goods would only mean that but for the payment of the additional amount, the sale of the goods would not take place. When we keep in mind the aforesaid legal position, we find no error in the view taken by the Tribunal giving benefit to the assessee. Both the sides were in unison in accepting the position that no major change had been incorporated w.e.f. 01.07.2000 with emphasis on the different transaction value from the assessable value, the essence of valuation principles had not undergone major change and the decisions delivered by this Court with regard to unamended provision on the principle of valuation were still applicable in determining the transaction value under the new provisions of Section 4 of the Act red with Central Excise Valuation (Determination of price of Excisable Goods) Rules, 2000. In fact, the Order-in-Original in M/s. TVS Motors Company Ltd. or in other cases itself proceeds on that basis.We have also to keep in mind these cases pertain to the period post 2000. It is also to be borne in mind that the clarification very categorically proceeded on the basis that the services were provided free by the dealer on behalf of the assessee and the same was during the warranty period. The clarification given, keeping in mind the aforesaid two features, makes all the difference inasmuch in these cases, we find that the services which are provided by the dealers are on their behalf and not on behalf of the assessees. The facts disclosed that the amount which was reimbursed by the assessee to their dealers pertaining to free service was being claimed as abatement in relation to the normal transaction value. It was one of the contention of these assessees that free service charges is a post sale activities and all post sale activities continued to be excludable in determining transaction value.
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Topanmal Chhotamal Vs. M/s. Kundomal Gangaram | subsequent proceedings shall, nevertheless, continue in the name of the firm."The gist of the said provisions may be stated thus: A decree against a firm can be executed (i) against the property of the partnership, (ii) against any person who has appeared in the suit individually in his own name and has been served with a notice under Rule 6 or 7 of Order XXX of C. P. C., (iii) against a person who has admitted on the pleadings that he is or has been adjudged a partner, or (iv) against any person who has been served with notice individually as a partner but has failed to appear. The decree against the firm can be executed against the personal property of such persons.3. So stated the legal position is unexceptional and indeed it has not been disputed by the learned counsel for the respondents, but what is contended is that the decree sought to be executed expressly excluded personal liability of the partners and, therefore, notwithstanding the provisions of Order XXI, Rule 50, the executing Court is precluded from going behind the decree. The decree consisted of two parts. The first part of the decree reads :"I decree the plaintiffs suit for Rupees 12,140-1-0 (twelve thousand one hundred and forty and anna one only) with costs and future and pendente lite interest at 3 p. c. p. a. against defendant No. 1 ...... ......." If those words exhausted the decree, the provisions of Order XXI, Rule 50, were automatically attracted, for the decree was against the firm. But the decree continued to state :"any such property of the firm M/s. Kundomal Gangaram as may be found in the hands of defendants 2 to 6."This part of the decree would be redundant if it was intended only, as the learned Attorney-General contended, to convey nothing more than the idea that the decree was against the assets of the firm, for that was really the effect of the first part of the decree. A decree against a firm without any further directions can be executed, subject to the provisions of Order XXI, Rule 50, C. P. C., against the properties of the firm in the hands of its partners. To avoid tautology, it is therefore necessary to read the decree as a whole to fit in the two parts in an integrated scheme. So construed, the reasonable interpretation would be that the first part gave a decree against the firm, and the second part confined its operation to the assets of the firm in the hands of its partners.4. At the worst the decree can be said to be ambiguous. In such a case it is the duty of the executing Court to construe the decree. For the purpose of interpreting a decree, when its terms are ambiguous, the Court would certainly be entitled to look into the pleadings and the judgment : see Manakchand v. Manoharlal, 71 Ind. App. 65 : (AIR 1944 P. C. 46).In the plaint in the Agra suit, Suit No. 205 of 1949, not only relief was asked for against the firm, but also a personal decree was claimed against defendants 2 to 6. The said defendants inter alia raised the plea that a personal decree could not be passed against them because they were not made parties to the suit filed in the Chief Court, Sind, and were not personally served therein. The learned Civil Judge, Agra, in accepting the plea made the following observation :"The defendants 2 to 6 were not made parties in Suit No. 533 of 1947 and were not individually served in that case. I think, therefore, the plaintiff cannot get a personal decree against defendants 2 to 6."After citing the relevant passage from the decision of the Madras High Court in Sahib Thambi Marakayar v. Hamid Marakayar, ILR 36 Mad. 414 , the learned Civil Judge concluded thus :"That being the law there is no reason for construing the decree obtained by the plaintiff in Suit No. 533 of 47 as creating a larger liability against the defendant partners of the firm than to make the partnership property in their hands liable. I hold, therefore, that a personal decree against defendants 2 to 6 cannot be given but only as regards the property of the firm defendant No. 1 which may be found in their hands. The plaintiff is thus entitled to a decree for Rs. 12,140-1-0 with costs further and pendente lite interest at 3 p. c. p. a. against defendant No. 1 as may be found in the hands of defendants 2 to 6."Then followed the decretal order. It is manifest from the pleadings and the judgment of the learned Civil Judge that when a personal decree was sought against respondents 2 to 6 on the same grounds that would have been open to the appellant for executing the decree against them under Order XXI, Rule 50, C. P. C., the learned Judge, for specific reasons mentioned by him, refused to give the appellant the said relief and expressly confined it to the assets of the firm in the hands of the partners.5. The question is whether in such circumstances an executing Court can go behind the decree and give the relief to the appellant which was expressly denied to him in the suit. The question so posed can only have one answer. It is a well-settled principle that a Court executing a decree cannot go behind the decree : it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit.If the contention of the appellant were to be accepted, it would contravene the said principle; for, while the decree as construed by us, has, directed that it should not be executed against the personal properties of the partners, the executing Court would be directing execution against the said partners. While the decree excluded personal liability, the executing Court would be imposing the same. This cannot obviously be done. | 1[ds]This part of the decree would be redundant if it was intended only, as the learnedcontended, to convey nothing more than the idea that the decree was against the assets of the firm, for that was really the effect of the first part of the decree. A decree against a firm without any further directions can be executed, subject to the provisions of Order XXI, Rule 50, C. P. C., against the properties of the firm in the hands of its partners. To avoid tautology, it is therefore necessary to read the decree as a whole to fit in the two parts in an integrated scheme. So construed, the reasonable interpretation would be that the first part gave a decree against the firm, and the second part confined its operation to the assets of the firm in the hands of itsis manifest from the pleadings and the judgment of the learned Civil Judge that when a personal decree was sought against respondents 2 to 6 on the same grounds that would have been open to the appellant for executing the decree against them under Order XXI, Rule 50, C. P. C., the learned Judge, for specific reasons mentioned by him, refused to give the appellant the said relief and expressly confined it to the assets of the firm in the hands of theled principle that a Court executing a decree cannot go behind the decree : it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit.If the contention of the appellant were to be accepted, it would contravene the said principle; for, while the decree as construed by us, has, directed that it should not be executed against the personal properties of the partners, the executing Court would be directing execution against the said partners. While the decree excluded personal liability, the executing Court would be imposing the same. This cannot obviously be done. | 1 | 2,137 | 360 | ### 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:
subsequent proceedings shall, nevertheless, continue in the name of the firm."The gist of the said provisions may be stated thus: A decree against a firm can be executed (i) against the property of the partnership, (ii) against any person who has appeared in the suit individually in his own name and has been served with a notice under Rule 6 or 7 of Order XXX of C. P. C., (iii) against a person who has admitted on the pleadings that he is or has been adjudged a partner, or (iv) against any person who has been served with notice individually as a partner but has failed to appear. The decree against the firm can be executed against the personal property of such persons.3. So stated the legal position is unexceptional and indeed it has not been disputed by the learned counsel for the respondents, but what is contended is that the decree sought to be executed expressly excluded personal liability of the partners and, therefore, notwithstanding the provisions of Order XXI, Rule 50, the executing Court is precluded from going behind the decree. The decree consisted of two parts. The first part of the decree reads :"I decree the plaintiffs suit for Rupees 12,140-1-0 (twelve thousand one hundred and forty and anna one only) with costs and future and pendente lite interest at 3 p. c. p. a. against defendant No. 1 ...... ......." If those words exhausted the decree, the provisions of Order XXI, Rule 50, were automatically attracted, for the decree was against the firm. But the decree continued to state :"any such property of the firm M/s. Kundomal Gangaram as may be found in the hands of defendants 2 to 6."This part of the decree would be redundant if it was intended only, as the learned Attorney-General contended, to convey nothing more than the idea that the decree was against the assets of the firm, for that was really the effect of the first part of the decree. A decree against a firm without any further directions can be executed, subject to the provisions of Order XXI, Rule 50, C. P. C., against the properties of the firm in the hands of its partners. To avoid tautology, it is therefore necessary to read the decree as a whole to fit in the two parts in an integrated scheme. So construed, the reasonable interpretation would be that the first part gave a decree against the firm, and the second part confined its operation to the assets of the firm in the hands of its partners.4. At the worst the decree can be said to be ambiguous. In such a case it is the duty of the executing Court to construe the decree. For the purpose of interpreting a decree, when its terms are ambiguous, the Court would certainly be entitled to look into the pleadings and the judgment : see Manakchand v. Manoharlal, 71 Ind. App. 65 : (AIR 1944 P. C. 46).In the plaint in the Agra suit, Suit No. 205 of 1949, not only relief was asked for against the firm, but also a personal decree was claimed against defendants 2 to 6. The said defendants inter alia raised the plea that a personal decree could not be passed against them because they were not made parties to the suit filed in the Chief Court, Sind, and were not personally served therein. The learned Civil Judge, Agra, in accepting the plea made the following observation :"The defendants 2 to 6 were not made parties in Suit No. 533 of 1947 and were not individually served in that case. I think, therefore, the plaintiff cannot get a personal decree against defendants 2 to 6."After citing the relevant passage from the decision of the Madras High Court in Sahib Thambi Marakayar v. Hamid Marakayar, ILR 36 Mad. 414 , the learned Civil Judge concluded thus :"That being the law there is no reason for construing the decree obtained by the plaintiff in Suit No. 533 of 47 as creating a larger liability against the defendant partners of the firm than to make the partnership property in their hands liable. I hold, therefore, that a personal decree against defendants 2 to 6 cannot be given but only as regards the property of the firm defendant No. 1 which may be found in their hands. The plaintiff is thus entitled to a decree for Rs. 12,140-1-0 with costs further and pendente lite interest at 3 p. c. p. a. against defendant No. 1 as may be found in the hands of defendants 2 to 6."Then followed the decretal order. It is manifest from the pleadings and the judgment of the learned Civil Judge that when a personal decree was sought against respondents 2 to 6 on the same grounds that would have been open to the appellant for executing the decree against them under Order XXI, Rule 50, C. P. C., the learned Judge, for specific reasons mentioned by him, refused to give the appellant the said relief and expressly confined it to the assets of the firm in the hands of the partners.5. The question is whether in such circumstances an executing Court can go behind the decree and give the relief to the appellant which was expressly denied to him in the suit. The question so posed can only have one answer. It is a well-settled principle that a Court executing a decree cannot go behind the decree : it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit.If the contention of the appellant were to be accepted, it would contravene the said principle; for, while the decree as construed by us, has, directed that it should not be executed against the personal properties of the partners, the executing Court would be directing execution against the said partners. While the decree excluded personal liability, the executing Court would be imposing the same. This cannot obviously be done.
### Response:
1
### Explanation:
This part of the decree would be redundant if it was intended only, as the learnedcontended, to convey nothing more than the idea that the decree was against the assets of the firm, for that was really the effect of the first part of the decree. A decree against a firm without any further directions can be executed, subject to the provisions of Order XXI, Rule 50, C. P. C., against the properties of the firm in the hands of its partners. To avoid tautology, it is therefore necessary to read the decree as a whole to fit in the two parts in an integrated scheme. So construed, the reasonable interpretation would be that the first part gave a decree against the firm, and the second part confined its operation to the assets of the firm in the hands of itsis manifest from the pleadings and the judgment of the learned Civil Judge that when a personal decree was sought against respondents 2 to 6 on the same grounds that would have been open to the appellant for executing the decree against them under Order XXI, Rule 50, C. P. C., the learned Judge, for specific reasons mentioned by him, refused to give the appellant the said relief and expressly confined it to the assets of the firm in the hands of theled principle that a Court executing a decree cannot go behind the decree : it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit.If the contention of the appellant were to be accepted, it would contravene the said principle; for, while the decree as construed by us, has, directed that it should not be executed against the personal properties of the partners, the executing Court would be directing execution against the said partners. While the decree excluded personal liability, the executing Court would be imposing the same. This cannot obviously be done.
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D. S. Reddy Vs. Chancellor, Osmania University & Ors | the Osmania University (Second Amendment Act. 1966 shall continue to hold that office only until a new Vice-Chancellor is appointed by the Chancellor under S. 12 (1) as amended and enters upon his office, and such appointment shall be made within ninety days after such commencement. 47. We are inclined to accept the contention of Mr. Setalvad, that there is no justification for the impugned legislation resulting in a classification of the Vice-Chancellors into two categories, viz., the appellant as the their existing Vice-Chancellor and the future Vice-Chancellor to be appointed under the Act. 48. In our view, the Vice-Chancellor, who is appointed under the Act, or the Vice-Chancellor who was holding that post on the date of the commencement of the Second Amendment Act, form one single group or class. Even assuming that the classification of these two types of persons as coming under two different groups can be made, nevertheless it is essential that such a classification must be founded on an intelligible differentia which distinguishes the appellant from the Vice-Chancellor appointed under the Act. We are not able to find any such intelligible differentia on the basis of which the classification can be justified. 49. It is also essential that the classification or differentia effected by the statute must have a rational relation to the object sought to be achieved by the statute. We have gone through the Statement of Objects and Reasons of the Second Amendment Bill which became law later, as well as the entire Act itself, as it now stands. In the Statement of Objects and Reasons for the Second Amendment Bill, extracted above, it is seen that except stating a fact that the term of office of the Vice-Chancellor has been reduced to 3 years under S. 13 (1) and that S. 13-A was intended to be enacted, no other policy is indicated which will justify the differentiation. The term of office fixing the period of three years for the Vice-Chancellor, has been already effected by the First Amendment Act and, therefore, the differential principle adopted for terminating the services of the appellant by enacting S. 13-A of the Act cannot be considered to be justified. In other words, the differentia adopted in S. 13-A and directed as against the Appellant - and the appellant alone - cannot be considered to have a rational relation to the object sought to he achieved by the Second Amendment Act. 50. While a Vice-Chancellor appointed under S. 12 of the Act can be removed from office only by adopting the procedure under S. 12 (2), the services of the appellant, who was also a Vice-Chancellor and similarly situated, is sought to be terminated by enacting S. 13-A of the Act. We do not see any policy underlying the Act justifying this differential treatment accorded to the appellant. The term of office of the Vice-Chancellors has been no doubt reduced wider the First Amendment Act and fixed for 3 years for all the Vice-Chancellors. But, so far as the appellant is concerned, by virtue of S. 13-A of the Act, he can continue to hold that office only until a new Vice-Chancellor is appointed by the Chancellor, and that appointment is to be made within 90 days. While all other Vice-Chancellors, appointed under the Act, can continue to be in office for a period of three years, the appellant is literally forced out of his office, on the expiry of 90 days from the date of commencement of the Second Amendment Act. There is also no provision in the statute providing for the termination of the services of the Vice-Chancellors, who are appointed under the Act, in the manner provided under Section 13-A of the Act. By S. 13-A, the appellant is even denied the benefits which may be available under the proviso to sub-s. (1) of S. 13 of the Act, which benefit is available to all other Vice-Chancellors. 51. The appointment of the appellant in 1959 and, again in 1964, wider S. 12 (1) of the Act, as it stood prior to the two object amendments, by the Chancellor, must have been, no doubt, from a panel of names submitted by a committee constituted under S. 12 (2). The appointment of a Vice-Chancellor after the passing of the First Amendment Act, is to be made exclusively by the Chancellor under S. 12 (1), as the section now stands. That is a circumstance, relied on by the respondent, for differentiating the appellant as an existing Vice-Chancellor from a Vice-Chancellor to be appointed under the Act as amended. Another circumstance relied on is that the appellant has been a Vice-Chancellor for 7 years. In our opinion these are not such vital or crucial factors which will justify treating the appellant as a class by himself. because the powers and duties of a Vice-Chancellor, either under the Act, prior to the amendment or under the Act, after amendment continue to be the same. To conclude, the classification of the appellant, as a class by himself, is not founded on any intelligible differentia, which distinguishes him from other Vice-Chancellors and it has no rational relation to the object of the statute, and so S. 13-A is hit by Art. 14. 52. The appellant has attacked S. 13-A, as discriminatory, relying upon a different provision, made under S. 33-A, in respect of the Senate, Syndicate. Academic Council and the Finance Committee. We have, however, not considered the question as to whether the appellant can be treated as falling under the same class, as the other authorities mentioned in S. 33-A as we have accepted the appellants contention, based upon Art. 14, on other grounds. 53. For the above reasons, we accept the contentions of the learned counsel for the appellant. and hold that S. 5 of the Second Amendment Act (Act XI of 1966), introducing S. 13-A in the Act, is discriminatory and violative of Art. 14 of the Constitution and, as such, has to be struck down as unconstitutional. | 1[ds]The findings recorded, and the views expressed, by the High Court are sought to be sustained by the learned Additional Solicitor-General, appearing for the respondents. But, we do not think it necessary to go into the larger controversy that has been raised by the appellant, before the High Court, in the view that we take, that the appellant must succeed in respect of the attack levelled against the impugned provision, based upon Art. 14 of the Constitution. As to whether the criticism, made by the appellant about the proposals to amend the Act, was or was not responsible for the passing of the legislation in question does not assume much of an importance; because, the simple question iswhether the provision, S. 13-A, as it now stands in the Act, is violative, in any manner, of Art. 14 of theConstitution.Therefore, it is clear that S. 13-A applies only to the appellant. Though, no doubt, it has been stated, on behalf of the respondents that similar provisions were incorporated, at about the same time in two other Acts, relating to two other Universities, viz., the Andhra University and the Sri Venkateswara University, and though this circumstance has also been taken into account by the learned Judges of the High Court, in our opinion, those provisions have no bearing in considering the attack levelled by the appellant on S. l3-A of the ActThis is a clear case where the statute itself directs its provisions, by enacting S. 13-A, against one individual, viz., the appellant; and, before it can be sustained as valid, this Court must be satisfied that there is a reasonable basis for grouping the appellant as a class by himself and that such reasonable basis must appear either in the statute itself or must be deducible from other surrounding circumstances. According to learned counsel for the appellant, all Vice- Chancellors of the Osmania University come under one group and can be classified only as one unit and there is absolutely no justification for grouping the appellant under one class and the Vice-Chancellors to be appointed in future under a separate class. In any event, it is also urged that the said classification has no relation or nexus to the object of the enactmentWhile a Vice-Chancellor appointed under S. 12 of the Act can be removed from office only by adopting the procedure under S. 12 (2), the services of the appellant, who was also a Vice-Chancellor and similarly situated, is sought to be terminated by enacting S. 13-A of the Act. We do not see any policy underlying the Act justifying this differential treatment accorded to the appellant. The term of office of the Vice-Chancellors has been no doubt reduced wider the First Amendment Act and fixed for 3 years for all the Vice-Chancellors. But, so far as the appellant is concerned, by virtue of S. 13-A of the Act, he can continue to hold that office only until a new Vice-Chancellor is appointed by the Chancellor, and that appointment is to be made within 90 days. While all other Vice-Chancellors, appointed under the Act, can continue to be in office for a period of three years, the appellant is literally forced out of his office, on the expiry of 90 days from the date of commencement of the Second Amendment Act. There is also no provision in the statute providing for the termination of the services of the Vice-Chancellors, who are appointed under the Act, in the manner provided under Section 13-A of the Act. By S. 13-A, the appellant is even denied the benefits which may be available under the proviso to sub-s. (1) of S. 13 of the Act, which benefit is available to all other Vice-ChancellorsThe appointment of the appellant in 1959 and, again in 1964, wider S. 12 (1) of the Act, as it stood prior to the two object amendments, by the Chancellor, must have been, no doubt, from a panel of names submitted by a committee constituted under S. 12 (2). The appointment of a Vice-Chancellor after the passing of the First Amendment Act, is to be made exclusively by the Chancellor under S. 12 (1), as the section now stands. That is a circumstance, relied on by the respondent, for differentiating the appellant as an existing Vice-Chancellor from a Vice-Chancellor to be appointed under the Act as amended. Another circumstance relied on is that the appellant has been a Vice-Chancellor for 7 years. In our opinion these are not such vital or crucial factors which will justify treating the appellant as a class by himself. because the powers and duties of a Vice-Chancellor, either under the Act, prior to the amendment or under the Act, after amendment continue to be the same. To conclude, the classification of the appellant, as a class by himself, is not founded on any intelligible differentia, which distinguishes him from other Vice-Chancellors and it has no rational relation to the object of the statute, and so S. 13-A is hit by Art. 14The appointment of the appellant in 1959 and, again in 1964, wider S. 12 (1) of the Act, as it stood prior to the two object amendments, by the Chancellor, must have been, no doubt, from a panel of names submitted by a committee constituted under S. 12 (2). The appointment of a Vice-Chancellor after the passing of the First Amendment Act, is to be made exclusively by the Chancellor under S. 12 (1), as the section now stands. That is a circumstance, relied on by the respondent, for differentiating the appellant as an existing Vice-Chancellor from a Vice-Chancellor to be appointed under the Act as amended. Another circumstance relied on is that the appellant has been a Vice-Chancellor for 7 years. In our opinion these are not such vital or crucial factors which will justify treating the appellant as a class by himself. because the powers and duties of a Vice-Chancellor, either under the Act, prior to the amendment or under the Act, after amendment continue to be the same. To conclude, the classification of the appellant, as a class by himself, is not founded on any intelligible differentia, which distinguishes him from other Vice-Chancellors and it has no rational relation to the object of the statute, and so S. 13-A is hit by Art. 14We have, however, not considered the question as to whether the appellant can be treated as falling under the same class, as the other authorities mentioned in S. 33-A as we have accepted the appellants contention, based upon Art. 14, on other grounds. | 1 | 9,078 | 1,237 | ### Instruction:
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the Osmania University (Second Amendment Act. 1966 shall continue to hold that office only until a new Vice-Chancellor is appointed by the Chancellor under S. 12 (1) as amended and enters upon his office, and such appointment shall be made within ninety days after such commencement. 47. We are inclined to accept the contention of Mr. Setalvad, that there is no justification for the impugned legislation resulting in a classification of the Vice-Chancellors into two categories, viz., the appellant as the their existing Vice-Chancellor and the future Vice-Chancellor to be appointed under the Act. 48. In our view, the Vice-Chancellor, who is appointed under the Act, or the Vice-Chancellor who was holding that post on the date of the commencement of the Second Amendment Act, form one single group or class. Even assuming that the classification of these two types of persons as coming under two different groups can be made, nevertheless it is essential that such a classification must be founded on an intelligible differentia which distinguishes the appellant from the Vice-Chancellor appointed under the Act. We are not able to find any such intelligible differentia on the basis of which the classification can be justified. 49. It is also essential that the classification or differentia effected by the statute must have a rational relation to the object sought to be achieved by the statute. We have gone through the Statement of Objects and Reasons of the Second Amendment Bill which became law later, as well as the entire Act itself, as it now stands. In the Statement of Objects and Reasons for the Second Amendment Bill, extracted above, it is seen that except stating a fact that the term of office of the Vice-Chancellor has been reduced to 3 years under S. 13 (1) and that S. 13-A was intended to be enacted, no other policy is indicated which will justify the differentiation. The term of office fixing the period of three years for the Vice-Chancellor, has been already effected by the First Amendment Act and, therefore, the differential principle adopted for terminating the services of the appellant by enacting S. 13-A of the Act cannot be considered to be justified. In other words, the differentia adopted in S. 13-A and directed as against the Appellant - and the appellant alone - cannot be considered to have a rational relation to the object sought to he achieved by the Second Amendment Act. 50. While a Vice-Chancellor appointed under S. 12 of the Act can be removed from office only by adopting the procedure under S. 12 (2), the services of the appellant, who was also a Vice-Chancellor and similarly situated, is sought to be terminated by enacting S. 13-A of the Act. We do not see any policy underlying the Act justifying this differential treatment accorded to the appellant. The term of office of the Vice-Chancellors has been no doubt reduced wider the First Amendment Act and fixed for 3 years for all the Vice-Chancellors. But, so far as the appellant is concerned, by virtue of S. 13-A of the Act, he can continue to hold that office only until a new Vice-Chancellor is appointed by the Chancellor, and that appointment is to be made within 90 days. While all other Vice-Chancellors, appointed under the Act, can continue to be in office for a period of three years, the appellant is literally forced out of his office, on the expiry of 90 days from the date of commencement of the Second Amendment Act. There is also no provision in the statute providing for the termination of the services of the Vice-Chancellors, who are appointed under the Act, in the manner provided under Section 13-A of the Act. By S. 13-A, the appellant is even denied the benefits which may be available under the proviso to sub-s. (1) of S. 13 of the Act, which benefit is available to all other Vice-Chancellors. 51. The appointment of the appellant in 1959 and, again in 1964, wider S. 12 (1) of the Act, as it stood prior to the two object amendments, by the Chancellor, must have been, no doubt, from a panel of names submitted by a committee constituted under S. 12 (2). The appointment of a Vice-Chancellor after the passing of the First Amendment Act, is to be made exclusively by the Chancellor under S. 12 (1), as the section now stands. That is a circumstance, relied on by the respondent, for differentiating the appellant as an existing Vice-Chancellor from a Vice-Chancellor to be appointed under the Act as amended. Another circumstance relied on is that the appellant has been a Vice-Chancellor for 7 years. In our opinion these are not such vital or crucial factors which will justify treating the appellant as a class by himself. because the powers and duties of a Vice-Chancellor, either under the Act, prior to the amendment or under the Act, after amendment continue to be the same. To conclude, the classification of the appellant, as a class by himself, is not founded on any intelligible differentia, which distinguishes him from other Vice-Chancellors and it has no rational relation to the object of the statute, and so S. 13-A is hit by Art. 14. 52. The appellant has attacked S. 13-A, as discriminatory, relying upon a different provision, made under S. 33-A, in respect of the Senate, Syndicate. Academic Council and the Finance Committee. We have, however, not considered the question as to whether the appellant can be treated as falling under the same class, as the other authorities mentioned in S. 33-A as we have accepted the appellants contention, based upon Art. 14, on other grounds. 53. For the above reasons, we accept the contentions of the learned counsel for the appellant. and hold that S. 5 of the Second Amendment Act (Act XI of 1966), introducing S. 13-A in the Act, is discriminatory and violative of Art. 14 of the Constitution and, as such, has to be struck down as unconstitutional.
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was or was not responsible for the passing of the legislation in question does not assume much of an importance; because, the simple question iswhether the provision, S. 13-A, as it now stands in the Act, is violative, in any manner, of Art. 14 of theConstitution.Therefore, it is clear that S. 13-A applies only to the appellant. Though, no doubt, it has been stated, on behalf of the respondents that similar provisions were incorporated, at about the same time in two other Acts, relating to two other Universities, viz., the Andhra University and the Sri Venkateswara University, and though this circumstance has also been taken into account by the learned Judges of the High Court, in our opinion, those provisions have no bearing in considering the attack levelled by the appellant on S. l3-A of the ActThis is a clear case where the statute itself directs its provisions, by enacting S. 13-A, against one individual, viz., the appellant; and, before it can be sustained as valid, this Court must be satisfied that there is a reasonable basis for grouping the appellant as a class by himself and that such reasonable basis must appear either in the statute itself or must be deducible from other surrounding circumstances. According to learned counsel for the appellant, all Vice- Chancellors of the Osmania University come under one group and can be classified only as one unit and there is absolutely no justification for grouping the appellant under one class and the Vice-Chancellors to be appointed in future under a separate class. In any event, it is also urged that the said classification has no relation or nexus to the object of the enactmentWhile a Vice-Chancellor appointed under S. 12 of the Act can be removed from office only by adopting the procedure under S. 12 (2), the services of the appellant, who was also a Vice-Chancellor and similarly situated, is sought to be terminated by enacting S. 13-A of the Act. We do not see any policy underlying the Act justifying this differential treatment accorded to the appellant. The term of office of the Vice-Chancellors has been no doubt reduced wider the First Amendment Act and fixed for 3 years for all the Vice-Chancellors. But, so far as the appellant is concerned, by virtue of S. 13-A of the Act, he can continue to hold that office only until a new Vice-Chancellor is appointed by the Chancellor, and that appointment is to be made within 90 days. While all other Vice-Chancellors, appointed under the Act, can continue to be in office for a period of three years, the appellant is literally forced out of his office, on the expiry of 90 days from the date of commencement of the Second Amendment Act. There is also no provision in the statute providing for the termination of the services of the Vice-Chancellors, who are appointed under the Act, in the manner provided under Section 13-A of the Act. By S. 13-A, the appellant is even denied the benefits which may be available under the proviso to sub-s. (1) of S. 13 of the Act, which benefit is available to all other Vice-ChancellorsThe appointment of the appellant in 1959 and, again in 1964, wider S. 12 (1) of the Act, as it stood prior to the two object amendments, by the Chancellor, must have been, no doubt, from a panel of names submitted by a committee constituted under S. 12 (2). The appointment of a Vice-Chancellor after the passing of the First Amendment Act, is to be made exclusively by the Chancellor under S. 12 (1), as the section now stands. That is a circumstance, relied on by the respondent, for differentiating the appellant as an existing Vice-Chancellor from a Vice-Chancellor to be appointed under the Act as amended. Another circumstance relied on is that the appellant has been a Vice-Chancellor for 7 years. In our opinion these are not such vital or crucial factors which will justify treating the appellant as a class by himself. because the powers and duties of a Vice-Chancellor, either under the Act, prior to the amendment or under the Act, after amendment continue to be the same. To conclude, the classification of the appellant, as a class by himself, is not founded on any intelligible differentia, which distinguishes him from other Vice-Chancellors and it has no rational relation to the object of the statute, and so S. 13-A is hit by Art. 14The appointment of the appellant in 1959 and, again in 1964, wider S. 12 (1) of the Act, as it stood prior to the two object amendments, by the Chancellor, must have been, no doubt, from a panel of names submitted by a committee constituted under S. 12 (2). The appointment of a Vice-Chancellor after the passing of the First Amendment Act, is to be made exclusively by the Chancellor under S. 12 (1), as the section now stands. That is a circumstance, relied on by the respondent, for differentiating the appellant as an existing Vice-Chancellor from a Vice-Chancellor to be appointed under the Act as amended. Another circumstance relied on is that the appellant has been a Vice-Chancellor for 7 years. In our opinion these are not such vital or crucial factors which will justify treating the appellant as a class by himself. because the powers and duties of a Vice-Chancellor, either under the Act, prior to the amendment or under the Act, after amendment continue to be the same. To conclude, the classification of the appellant, as a class by himself, is not founded on any intelligible differentia, which distinguishes him from other Vice-Chancellors and it has no rational relation to the object of the statute, and so S. 13-A is hit by Art. 14We have, however, not considered the question as to whether the appellant can be treated as falling under the same class, as the other authorities mentioned in S. 33-A as we have accepted the appellants contention, based upon Art. 14, on other grounds.
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BALRAM GARG & ORS Vs. SECURITIES AND EXCHANGE BOARD OF INDIA | above principles of law laid down by this Court, it was imperative on the Respondent/SEBI to place on record relevant material to prove that the appellants in C.A. No.7590 of 2021, namely, Mrs. Shivani Gupta, Sachin Gupta, Amit Garg and Quick Developers Pvt. Ltd. were immediate relatives who were dependent financially on appellant Balram Garg or consult Balram Garg in taking decisions relating to trading in securities. However, SEBI failed to do so as has been already recorded by the WTM in its order dated 11.05.2021. The said appellants in C.A. No.7590 of 2021 were not immediate relatives and were completely financially independent of the appellant Balram Garg and had nothing to do with the said Balram Garg in any decision making process relating to securities or even otherwise. 45. In the context of appellant no. 4 (in C.A. No.7590 of 2021), namely Quick Developers Pvt. Ltd., the record clearly reveals that it is neither a holding company or an associate company or a subsidiary company of PCJ nor the appellant Balram Garg has ever been the Director of Quick Developers Pvt. Ltd. Therefore, Quick Developers Pvt. Ltd. cannot be held to be a connected person vis--à--vis the appellant Balram Garg. 46. Furthermore, reliance of the Respondent/SEBI on transactions between appellant Sachin Gupta and PCJ and the subsequent payments of rent by PCJ is against the principles of natural justice as these allegations were not part of the Show Cause Notices. To cement this proposition, reference could be made to Tarlochan Dev Sharma vs State of Punjab [(2001) 6 SCC 260] wherein this Court has held that: We are, therefore, clearly of the opinion that not only the principles of natural justice were violated by the factum of the impugned order having been founded on grounds at variance from the one in the show cause notice, of which appellant was not even made aware of let alone provided an opportunity to offer his explanation, the allegations made against the appellant did not even prima facie make out a case of abuse of powers of President. [emphasis supplied] Similar observations have also been made by this Court in Hindustan Lever Ltd. vs. Director General (Investigation and Registration) [(2001) 2 SCC 474] . 47. Lastly, we have given our anxious consideration to the judgements relied upon by the learned counsel of the Respondent viz. SEBI vs Kishore R. Ajmera [(2016) 6 SCC 368] and Dushyant N. Dalal vs. SEBI [(2017) 9 SCC 660] . Suffice it to hold that these cases are distinguishable on the facts of the present case, as the former is not a case of insider trading but that of Fraudulent/Manipulative Trade Practices; and the latter case relates to Interests and Penalty rather than the subject matter at hand. Reliance placed on the case of Kishore R. Ajmera (supra) to show that presumption can be drawn on the basis of immediate and relevant facts is contrary to law already settled by this Court in the case of Chintalapati Srinivasa Raju (supra) where it is held that a reasonable expectation to be in the know of things can only be based on reasonable inference drawn from foundational facts. It has further been held that merely because a person was related to the connected person cannot by itself be a foundational fact to draw an inference. 48. To conclude, the entire case of the Respondents was premised on two important propositions, that firstly, there existed a close relationship between the appellants herein; and secondly, that based on the circumstantial evidence (trading pattern and timing of trading), it could be reasonably concluded that the appellants in C.A. No.7590 of 2021 were insiders in terms of Regulation 2(1)(g)(ii) of the PIT Regulations. However, as the discussion above would reveal, the WTM and SAT wrongly rejected the claim of estrangement of the Appellants in C.A. No.7590 of 2021, without appreciating the facts and evidence as was produced before them. The records and facts adequately establish that the there was a breakdown of ties between the parties, both at personal and professional level and that the said estrangement happened much prior to the two UPSI. Secondly, as has already been discussed, the SAT erred in holding the appellants in C.A. No.7590 of 2021 to be insiders in terms of regulation 2(1)(g)(ii) of the PIT Regulations on the basis of their trading pattern and their timing of trading (circumstantial evidence). We are of the firm opinion that there is no correlation between the UPSI and the sale of shares undertaken by the appellants in C.A. No.7590 of 2021. Moreover, in the absence of any material available on record to show frequent communication between the parties, there could not have been a presumption of communication of UPSI by the appellant Balram Garg. The trading pattern of the appellants in C.A. No.7590 of 2021 cannot be the circumstantial evidence to prove the communication of UPSI by the appellant Balram Garg to the other appellants in C.A. No.7590 of 2021. There is no material on record for the WTM and the SAT to arrive at the finding that both late P.C. Gupta and the appellant Balram Garg communicated the UPSI to the other appellants in C.A. No.7590 of 2021. The said appellants in C.A. No.7590 of 2021 were not immediate relatives and were completely financially independent of the appellant Balram Garg and had nothing to do with the him in any decision making process relating to securities or even otherwise. The submission of the learned counsel of the respondent regarding the same residential address of the appellants also falls flat as admittedly the parties were residing in separate buildings on a large tract of land. Lastly, in our opinion, the SAT order suffers from non--application of mind and the same is a mere repetition of facts stated by the WTM. The Appellate Tribunal was exercising jurisdiction of a First Appellate Court and was bound to independently assess the evidenced and material on record, which it evidently failed to do. | 1[ds]24. The submission of the Respondent that appellant Balram Garg contravened Regulation 3(1) of the PIT Regulations and section 12A(c) of the SEBI Act, by communicating the UPSI to the appellants in C.A. No.7590 of 2021, being an insider and connected person within the meaning of PIT Regulations is not worthy of acceptance. The Securities Appellate Tribunal has erred in upholding the order of the Whole Time Member of SEBI as it has failed to independently assess the evidence and material on record while exercising its jurisdiction as the first appellate court. As reiterated by this Court in a catena of judgements, it is the duty of the first court of appeal to deal with all the issues and evidence led by the parties on both, the questions of law as well as questions of fact and then decide the issue by providing adequate reasons for its findings. Unfortunately, the SAT failed to apply its mind on the issues raised by the parties and routinely affirmed the findings of the WTM without dealing with the issues at hand. In this context, this Court has held in H.K.N. Swami v. Irshad Basith [(2005) 10 SCC 243] that:The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title.The above position was reiterated by this Court in UPSRTC vs Mamta [(2016) 4 SCC 172] .25. The SAT again fell in error when in spite of observing that there is no direct evidence which suggests as to who had disseminated the insider information to the appellants in C.A. No.7590 of 2021, it concluded on mere preponderance of probability that it was late P.C. Gupta as well as appellant Balram Garg who disseminated both UPSI to the appellants in C.A. No.7590 of 2021.26. Importantly, the WTM arrived at the finding that the appellants in C.A. No.7590 of 2021, namely, Mrs. Shivani Gupta, Sachin Gupta, Amit Garg and Quick Developers Pvt. Ltd. were not connected persons qua the appellant Balram Garg. The WTM held that:I also note that it is not the case in the SCN that Noticee no.1, 2 and 3 were in any contractual, fiduciary or employment relationship with the company, or were the director or officer of the company, during the past 6 months of the alleged act of insider trading. Noticee No. 1 and 2 seem to be in the employment of the company but that was way back in 2015. I also note that the SCN has also not identified that Noticee no. 1,2,3 or 4 had any professional or business relationship with the company, that allows the said Noticees, directly or indirectly, access to unpublished price sensitive information. In view of the above, I find that Noticee no. 1,2,3 and 4 cannot be treated as connected persons in terms of Reg. 2(1)(d)(i) of PIT Regulations, 2015.27. In our opinion, two important findings of the WTM and SAT need to be re-examined by this Court to adequately decide the present set of appeals. Firstly, Whether the WTM and SAT rightly rejected the claim of estrangement of the appellants in C.A. No.7590 of 2021, namely, Mrs. Shivani Gupta, Sachin Gupta and Amit Garg? Secondly, could the aforementioned appellants be rightly held to be insiders in terms of Regulation 2(1)(g)(ii) of the PIT Regulations, only and entirely on the basis of circumstantial evidence?28. The appellants in C.A. No.7590 of 2021, namely, Mrs. Shivani Gupta, Sachin Gupta and Amit Garg, claimed before the WTM and SAT that they were estranged from the family and did not have the required connection with the appellant Balram Garg, who was the MD of the PCJ at the relevant time period. However, we are of the opinion that the WTM and SAT wrongly rejected this claim of the Appellants in C.A. No.7590 of 2021 without appreciating the facts and evidence as was produced before them. The WTM and SAT ought to have appreciated the relevant facts for ascertaining the true nature of relationship between the parties.29. To understand the abovementioned relationship, it is pertinent to note that PCJ was promoted in 2005 by three brothers viz. P.C. Gupta [since deceased], Amar Chand Garg and Balram Garg (Appellant in C.A. No.7054 of 2021). Subsequently, due to certain differences, Amar Chand Garg and his branch of the family exited the Company by entering into a family arrangement dated 01.07.2011 whereby their shareholding in the company was reduced to a meagre 0.70%. In September, 2011, Amar Chand Garg also resigned as the Vice Chairman of the company and disassociated himself from the company. Further, the record reveals that the son of Amar Chand Garg, i.e. Amit Garg (3rd Appellant in C.A. No.7590 of 2021) was never associated with the company. On 31.03.2015, on account of certain disputes that had arisen between Sachin Gupta (2nd Appellant in C.A. No.7590 of 2021) and his parents P.C. Gupta and Smt. Krishna Devi, Sachin Gupta, so as to exit the company along with his family, resigned from his position as President (Gold Manufacturing) of the Company and Mrs. Shivani Gupta (1st Appellant in C.A. No.7590 of 2021 and wife of Sachin Gupta) also resigned from her post of Senior Assistant Manager, Karol Bagh Store of PCJ. Importantly, both Sachin Gupta and Smt. Shivani Gupta were, at no point of time, Directors of PCJ.30. Subsequently, late P.C. Gupta and his son Sachin Gupta entered into another family arrangement dated 10.04.2015 whereby P.C. Gupta and his wife agreed to transfer at least 1,60,00,000 shares of the company to Sachin Gupta and his family, and in lieu thereof Sachin Gupta and his family agreed not to have any right whatsoever in the immovable and movable property of P.C. Gupta and his wife. However, Sachin Gupta and his wife Smt. Shivani Gupta were permitted to use the property at 1-C, Court Road, Civil Lines, Delhi for residential purposes only. It is pertinent to note here that the said plot of land is a large tract of land and separate buildings were constructed thereon. P.C. Gupta and Sachin Gupta, along with their families, resided in separate floors of the same building, whereas Amit Garg and Balram Garg resided in separate buildings.31. Post the agreed transfer of shares by P.C. Gupta and his wife, Sachin Gupta and his wife Smt. Shivani Gupta inter alia, sold some shares of the company from 02.04.2018 to 13.07.2018. This aforesaid trade in shares was the subject matter of investigation by the Respondent/SEBI as it was contented by SEBI that the abovementioned trade was based on UPSI and hence was in contravention of SEBI Act and PIT Regulations. The WTM and SAT erred in not appreciating the aforementioned facts which adequately establish that the there was a breakdown of ties between both the parties, both at personal and professional level, and that the said estrangement happened much prior to the two UPSI. Hence, we are of the opinion that when the two family arrangements (dated 01.07.2011 and 10.04.2015) are considered in their right perspective, it adequately demonstrates that there was a breakdown of relations between the parties. Additionally, given the fact that the entire case against the appellants for the offence of insider trading was based on the nature of close relationship between the parties, once it has been rightly held by the WTM that the appellants are neither connected persons within the meaning of Regulation 2(1)(d) nor immediate relatives within the meaning of Regulation 2(1)(f) of PIT Regulation, the question of ipso facto relying on the nature of relationship between the parties to come to the conclusion that they were in possession of or having access to UPSI while trading with the shares of the company is legally unsustainable.32. Moreover, we find merit in the submission of the counsel for the appellants in C.A. No.7590 of 2021 that even assuming that the said family arrangements did not result in complete estrangement of social relations between the parties, the SAT could not, by virtue of this very fact, discharge SEBI of the onus of proof placed on them to prove that the Appellants were in possession of UPSI. In our opinion, the approach adopted by the SAT turns the SEBI Act on its head as it places the burden of proving that there was a complete breakdown of ties between the parties on the Appellants in C.A. No.7590 of 2021 while conveniently ignoring the fact that the onus was actually on SEBI to prove that the appellants were in possession of or having access to UPSI. The legislative note to Regulation 2(1)(g) makes the above position of law explicitly clear. It states that:... The onus of showing that a certain person was in possession of or had access to unpublished price sensitive information at the time of trading would, therefore, be on the person leveling the charge after which the person who has traded when in possession of or having access to unpublished price sensitive information may demonstrate that he was not in such possession or that he has not traded or he could not access or that his trading when in possession of such information was squarely covered by the exonerating circumstances.34. In this context, it is important to highlight that the two major Corporate Announcements, purportedly related to a change in companys capital structure, which were:i. UPSI--1 [Period between 25.04.2018 to 10.05.2018]:The announcement of the Company on 10.05.2018 to buy back up to 1,21,14,285 fully paid up equity shares of Rs. 10/- each at a price of Rs. 350/- per equity share.ii. UPSI--2 [Period between 07.07.2018 to 13.07.2018]:The announcement of the company withdrawing their buy--back offer due to non--receipt of NOC from State Bank of India.35. After carefully and extensively perusing the records, we have come to the conclusion that the SAT erred in holding the appellants in C.A. No.7590 of 2021 to be insiders in terms of Regulation 2(1) (g)(ii) of the PIT Regulations on the basis of their trading pattern and their timing of trading (circumstantial evidence). The reasoning of the SAT is ex facie contrary to the records, as would be evident from the forthcoming discussion wherein our analysis of the alleged transactions has been divided into three phases viz. Phase--I [Period from 02.04.2018 to 24.04.2018], Phase--II [Period from 22.06.2018 to 06.07.2018] and Phase--III [Period from 07.07.2018 to 13.07.2018].36. Phase--I [02.04.2018 to 24.04.2018 i.e. Pre UPSI--1 Period]: Appellant Mrs. Shivani Gupta sold shares gifted to her by P.C. Gupta and Smt. Krishna Devi (as part of the family arrangement dated 10.04.2015) for personal and commercial reasons. The said shares were sold for a price of Rs. 300 per share during the said period. However, since the price of the shares kept falling, Mrs. Shivani decided to stop selling shares on 24.04.2018. Further, if we presume that she had internal knowledge of the companys affair including the impending buy--back offer, it would be reasonable to assume that she would not have sold such a large chunk of shares (74,35,071 shares) in the pre--UPSI--1 period when the prices of the shares were falling and would have instead chosen to wait for the buy--back offer. This also assumes importance since SEBI itself, vide its show--cause notice dated 24.04.2020 had dropped the charges with respect to the UPSI--1 period. This would mean that the notional loss purportedly avoided by appellant Mrs. Shivani Gupta was only for the shares traded during the UPSI-II Period, and even according to SEBI, there was no case that she made any money or avoided any loss by trading in the shares of the company during the UPSI--1 Period.37. Phase--II [22.06.2018 to 06.07.2018 i.e. Pre- UPSI-II Period]: PCJ had requested SBI to issue a NOC for the proposed buy--back offer on 07.07.2018 and the said request was rejected on the same day by the SBI. However, even before the said refusal by the SBI, the appellant Mrs. Shivani Gupta had sold 1,00,000 shares on 06.07.2018 at a much lower price than the price at which the shares were sold earlier. On the date on which these shares were sold, the UPSI--2 had not even come into existence. If the arguments of the respondent hold any water, the Appellants should have waited till UPSI--2 and would only have subsequently offloaded maximum number of shares during the said period to avoid any notional loss. However, the records undercut the logic adopted by the respondent/SEBI for the reason that the appellants were not in possession of the UPSI--2 and hence the appellants started selling the shares even before the UPSI--2 came into existence.38. Phase--III [07.07.2018 to 13.07.2018 i.e. UPSI-II Period]: The Appellant Mrs. Shivani Gupta sold only 15,00,000 shares during this period as opposed to the 74,35,071 shares that were sold at an earlier point of time (Pre--UPSI--1 Period). Importantly, notwithstanding the fact that the appellant Mrs. Shivani Gupta sold 15,00,000 shares, she continued to hold 12,84,111 shares of the company, out of the total that were transferred to her by way of the family arrangement. These above factors undercut the argument of SEBI that the appellants sold huge number of shares during UPSI--2 period because they had the information that once the information of withdrawal of buy--back offer by PCJ was made public, the price of the shares would drastically fall. Moreover, the data reveals that the share price of the PCJ shares consistently fell during the investigation period and therefore it would be incorrect to say that the price of the shares fell only upon announcement of the withdrawal of the buy-back offer. In fact, the records reveal that even after the announcement of the buy--back offer, there was no increase in the share prices of the company. Resultantly, the appellants stopped selling shares on 13.07.2018 because they believed that the market price continued to fall so badly that the shares possessed by them were not being valued accurately in the market. Hence, the appellants decided to constitute to hold their shareholdings.39. In such view of the matter, we are of the opinion that there is no correlation between the UPSI and the sale of shares undertaken by the appellants in C.A. No.7590 of 2021. The said decisions of selling the shares and the timings thereof were purely a personal and commercial decision undertaken by them and nothing more can be read into those decisions. If the appellants did possess the UPSIs, we are unable to understand that why would the appellant Mrs. Shivani Gupta sell only 15,00,000 shares during this period as opposed to the 74,35,071 shares that were sold at an earlier point of time (Pre--UPSI--1 Period) and still continue to hold 12,84,111 shares of the company that could have also been sold along with the 15,00,000 shares that were sold during the UPSI--2 period.40. We are also of the opinion that in the absence of any material available on record to show frequent communication between the parties, there could not have been a presumption of communication of UPSI by the appellant Balram Garg. The trading pattern of the appellants in C.A. No.7590 of 2021 cannot be the circumstantial evidence to prove the communication of UPSI by the appellant Balram Garg to the other appellants in C.A. No.7590 of 2021. It would also be pertinent to note here that Regulation 3 of the PIT Regulations, which deals with communication of UPSI, does not create a deeming fiction in law. Hence, it is only through producing cogent materials (letters, emails, witnesses etc.) that the said communication of UPSI could be proved and not by deeming the communication to have happened owing to the alleged proximity between the parties. In this context, even the show--cause notices do not allege any communication between the Appellant Balram Garg and the other appellants in C.A. No.7590 of 2021. This is evident from the following extract of the order of the WTM:A perusal of the SCNs shows that allegations of Noticees no. 1 to 4 being connected person under Regulation 2(1)(d)(i) seems to have been proceeded on the basis of inference drawn that Noticees no. 1 to 3 being relatives of Late Shri Padam Chand Gupta who was promotor and chairman of PC Jewellers, and Noticee no. 5 who was the MD of PC Jewellers, would be having frequent communication with Late Shri Gupta and Noticee No. 5. However, here I note that as per Regulation 2(1)(d)(i) , association by virtue of frequent communication with the officer of the company must be arising in the discharge of his/her duty towards the company. The SCNs does not allege that there was any communication between Noticee no. 5 and Noticee no. 1 to 4, arising out discharge of any duty owed by Noticee no. 1,2,3 or 4 to the compoany. [emphasis supplied]41. This Court in Hanumant vs. State of Madhya Pradesh [AIR 1952 Supreme Court 343] has held that:Assuming that the accused Nargundkar had taken the tenders to his house, the prosecution, in order to bring the guilt home to the accused, has yet to prove the other facts referred to above. No direct evidence was adduced in proof of those facts. Reliance was placed by the prosecution and by the courts below on certain circumstances, and intrinsic evidence contained in the impugned document, Exhibit P-3A. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind.In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore it is right to recall the warning addressed by Baron Alderson, to the jury in Reg v. Hodge ((1838) 2 Lew. 227), where he said :-The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to from parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.It is well to remember that in cases where the evidence in of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and pendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In spite of the forceful arguments addressed to us by the learned Advocate--General on behalf of the State we have not been able to discover any such evidence either intrinsic within Exhibit P-3A or outside and we are constrained to observe that the courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case. [emphasis supplied]42. This Court in Chintalapati Srinivasa Raju vs Securities and Exchange Board of India [(2018) 7 SCC 443] has further held that:Further, under the second part of Regulation 2(e) (i), the connected person must be reasonably expected to have access to unpublished price sensitive information. The expression reasonably expected cannot be a mere ipse dixit – there must be material to show that such person can reasonably be so expected to have access to unpublished price sensitive information.We have already demonstrated that the minority judgment is much more detailed and correct than the majority judgment of the Appellant Tribunal. We accept Shri Singhs submission that in cases like the present, a reasonable expectation to be in the know of things can only be based on reasonable inferences drawn from foundational facts. This Court in SEBI v. Kishore R. Ajmera, (2016) 6 SCC 368 at 383, stated:26. It is a fundamental principle of law that proof of an allegation leveled against a person may be in the form of direct substantive evidence or, as in many cases, such proof may have to be inferred by a logical process of reasoning from the totality of the attending facts and circumstances surrounding the allegations/charges made and leveled. While direct evidence is a more certain basis to come to a conclusion, yet, in the absence thereof the Courts cannot be helpless. It is the judicial duty to take note of the immediate and proximate facts and circumstances surrounding the events on which the charges/allegations are founded and to reach what would appear to the Court to be a reasonable conclusion therefrom. The test would always be that what inferential process that a reasonable/prudent man would adopt to arrive at a conclusion.We are of the view that from the mere fact that the appellant promoted two joint venture companies, one of which ultimately merged with SCSL, and the fact that he was a co-brother of B. Ramalinga Raju, without more, cannot be stated to be foundational facts from which an inference of reasonably being expected to be in the knowledge of confidential information can be formed. The fact that the appellant was to be continued as a director till replacement again does not take us anywhere. Shri Viswanathan has shown us that two other independent non--executive directors were appointed in his place on and from 23.1.2003. What is clear is that the appellant devoted all his energies to the businesses he was running, on and after resigning as an executive director of SCSL, as a result of which the salary he was being paid by SCSL was discontinued.43. This Court has also held in a catena of cases that the foundational facts must be established before a presumption is made. In this context, in Seema Silk & Sarees vs. Directorate of Enforcement [(2008) 5 SCC 580] this Court has held that:The presumption raised against the trader is a rebuttable one. Reverse burden as also statutory presumptions can be raised in several statutes as, for example, the Negotiable Instruments Act, Prevention of Corruption Act, TADA, etc. Presumption is raised only when certain foundational facts are established by the prosecution. The accused in such an event would be entitled to show that he has not violated the provisions of the Act.In the present case, as rightly argued by the learned counsel of the appellant, the foundational facts were not proved which could raise the alleged presumption. SEBI failed to place on record any material to prove that the appellants in C.A. No.7590/2021 were connected persons to Balram Garg as required by Regulation 2(1)(d)(ii)(a) read with Regulation 2(1)(f) of the PIT Regulations as none of the appellants C.A. No.7590/2021 were financially dependent on Balram Garg or even alleged to have consulted Balram Garg in any decision related to trading in securities.44. In light of the above principles of law laid down by this Court, it was imperative on the Respondent/SEBI to place on record relevant material to prove that the appellants in C.A. No.7590 of 2021, namely, Mrs. Shivani Gupta, Sachin Gupta, Amit Garg and Quick Developers Pvt. Ltd. were immediate relatives who were dependent financially on appellant Balram Garg or consult Balram Garg in taking decisions relating to trading in securities. However, SEBI failed to do so as has been already recorded by the WTM in its order dated 11.05.2021. The said appellants in C.A. No.7590 of 2021 were not immediate relatives and were completely financially independent of the appellant Balram Garg and had nothing to do with the said Balram Garg in any decision making process relating to securities or even otherwise.45. In the context of appellant no. 4 (in C.A. No.7590 of 2021), namely Quick Developers Pvt. Ltd., the record clearly reveals that it is neither a holding company or an associate company or a subsidiary company of PCJ nor the appellant Balram Garg has ever been the Director of Quick Developers Pvt. Ltd. Therefore, Quick Developers Pvt. Ltd. cannot be held to be a connected person vis--à--vis the appellant Balram Garg.46. Furthermore, reliance of the Respondent/SEBI on transactions between appellant Sachin Gupta and PCJ and the subsequent payments of rent by PCJ is against the principles of natural justice as these allegations were not part of the Show Cause Notices. To cement this proposition, reference could be made to Tarlochan Dev Sharma vs State of Punjab [(2001) 6 SCC 260] wherein this Court has held that:We are, therefore, clearly of the opinion that not only the principles of natural justice were violated by the factum of the impugned order having been founded on grounds at variance from the one in the show cause notice, of which appellant was not even made aware of let alone provided an opportunity to offer his explanation, the allegations made against the appellant did not even prima facie make out a case of abuse of powers of President.Similar observations have also been made by this Court in Hindustan Lever Ltd. vs. Director General (Investigation and Registration) [(2001) 2 SCC 474] .47. Lastly, we have given our anxious consideration to the judgements relied upon by the learned counsel of the Respondent viz. SEBI vs Kishore R. Ajmera [(2016) 6 SCC 368] and Dushyant N. Dalal vs. SEBI [(2017) 9 SCC 660] . Suffice it to hold that these cases are distinguishable on the facts of the present case, as the former is not a case of insider trading but that of Fraudulent/Manipulative Trade Practices; and the latter case relates to Interests and Penalty rather than the subject matter at hand. Reliance placed on the case of Kishore R. Ajmera (supra) to show that presumption can be drawn on the basis of immediate and relevant facts is contrary to law already settled by this Court in the case of Chintalapati Srinivasa Raju (supra) where it is held that a reasonable expectation to be in the know of things can only be based on reasonable inference drawn from foundational facts. It has further been held that merely because a person was related to the connected person cannot by itself be a foundational fact to draw an inference.48. To conclude, the entire case of the Respondents was premised on two important propositions, that firstly, there existed a close relationship between the appellants herein; and secondly, that based on the circumstantial evidence (trading pattern and timing of trading), it could be reasonably concluded that the appellants in C.A. No.7590 of 2021 were insiders in terms of Regulation 2(1)(g)(ii) of the PIT Regulations. However, as the discussion above would reveal, the WTM and SAT wrongly rejected the claim of estrangement of the Appellants in C.A. No.7590 of 2021, without appreciating the facts and evidence as was produced before them. The records and facts adequately establish that the there was a breakdown of ties between the parties, both at personal and professional level and that the said estrangement happened much prior to the two UPSI. Secondly, as has already been discussed, the SAT erred in holding the appellants in C.A. No.7590 of 2021 to be insiders in terms of regulation 2(1)(g)(ii) of the PIT Regulations on the basis of their trading pattern and their timing of trading (circumstantial evidence). We are of the firm opinion that there is no correlation between the UPSI and the sale of shares undertaken by the appellants in C.A. No.7590 of 2021. Moreover, in the absence of any material available on record to show frequent communication between the parties, there could not have been a presumption of communication of UPSI by the appellant Balram Garg. The trading pattern of the appellants in C.A. No.7590 of 2021 cannot be the circumstantial evidence to prove the communication of UPSI by the appellant Balram Garg to the other appellants in C.A. No.7590 of 2021. There is no material on record for the WTM and the SAT to arrive at the finding that both late P.C. Gupta and the appellant Balram Garg communicated the UPSI to the other appellants in C.A. No.7590 of 2021. The said appellants in C.A. No.7590 of 2021 were not immediate relatives and were completely financially independent of the appellant Balram Garg and had nothing to do with the him in any decision making process relating to securities or even otherwise. The submission of the learned counsel of the respondent regarding the same residential address of the appellants also falls flat as admittedly the parties were residing in separate buildings on a large tract of land. Lastly, in our opinion, the SAT order suffers from non--application of mind and the same is a mere repetition of facts stated by the WTM. The Appellate Tribunal was exercising jurisdiction of a First Appellate Court and was bound to independently assess the evidenced and material on record, which it evidently failed to do. | 1 | 12,889 | 5,641 | ### Instruction:
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above principles of law laid down by this Court, it was imperative on the Respondent/SEBI to place on record relevant material to prove that the appellants in C.A. No.7590 of 2021, namely, Mrs. Shivani Gupta, Sachin Gupta, Amit Garg and Quick Developers Pvt. Ltd. were immediate relatives who were dependent financially on appellant Balram Garg or consult Balram Garg in taking decisions relating to trading in securities. However, SEBI failed to do so as has been already recorded by the WTM in its order dated 11.05.2021. The said appellants in C.A. No.7590 of 2021 were not immediate relatives and were completely financially independent of the appellant Balram Garg and had nothing to do with the said Balram Garg in any decision making process relating to securities or even otherwise. 45. In the context of appellant no. 4 (in C.A. No.7590 of 2021), namely Quick Developers Pvt. Ltd., the record clearly reveals that it is neither a holding company or an associate company or a subsidiary company of PCJ nor the appellant Balram Garg has ever been the Director of Quick Developers Pvt. Ltd. Therefore, Quick Developers Pvt. Ltd. cannot be held to be a connected person vis--à--vis the appellant Balram Garg. 46. Furthermore, reliance of the Respondent/SEBI on transactions between appellant Sachin Gupta and PCJ and the subsequent payments of rent by PCJ is against the principles of natural justice as these allegations were not part of the Show Cause Notices. To cement this proposition, reference could be made to Tarlochan Dev Sharma vs State of Punjab [(2001) 6 SCC 260] wherein this Court has held that: We are, therefore, clearly of the opinion that not only the principles of natural justice were violated by the factum of the impugned order having been founded on grounds at variance from the one in the show cause notice, of which appellant was not even made aware of let alone provided an opportunity to offer his explanation, the allegations made against the appellant did not even prima facie make out a case of abuse of powers of President. [emphasis supplied] Similar observations have also been made by this Court in Hindustan Lever Ltd. vs. Director General (Investigation and Registration) [(2001) 2 SCC 474] . 47. Lastly, we have given our anxious consideration to the judgements relied upon by the learned counsel of the Respondent viz. SEBI vs Kishore R. Ajmera [(2016) 6 SCC 368] and Dushyant N. Dalal vs. SEBI [(2017) 9 SCC 660] . Suffice it to hold that these cases are distinguishable on the facts of the present case, as the former is not a case of insider trading but that of Fraudulent/Manipulative Trade Practices; and the latter case relates to Interests and Penalty rather than the subject matter at hand. Reliance placed on the case of Kishore R. Ajmera (supra) to show that presumption can be drawn on the basis of immediate and relevant facts is contrary to law already settled by this Court in the case of Chintalapati Srinivasa Raju (supra) where it is held that a reasonable expectation to be in the know of things can only be based on reasonable inference drawn from foundational facts. It has further been held that merely because a person was related to the connected person cannot by itself be a foundational fact to draw an inference. 48. To conclude, the entire case of the Respondents was premised on two important propositions, that firstly, there existed a close relationship between the appellants herein; and secondly, that based on the circumstantial evidence (trading pattern and timing of trading), it could be reasonably concluded that the appellants in C.A. No.7590 of 2021 were insiders in terms of Regulation 2(1)(g)(ii) of the PIT Regulations. However, as the discussion above would reveal, the WTM and SAT wrongly rejected the claim of estrangement of the Appellants in C.A. No.7590 of 2021, without appreciating the facts and evidence as was produced before them. The records and facts adequately establish that the there was a breakdown of ties between the parties, both at personal and professional level and that the said estrangement happened much prior to the two UPSI. Secondly, as has already been discussed, the SAT erred in holding the appellants in C.A. No.7590 of 2021 to be insiders in terms of regulation 2(1)(g)(ii) of the PIT Regulations on the basis of their trading pattern and their timing of trading (circumstantial evidence). We are of the firm opinion that there is no correlation between the UPSI and the sale of shares undertaken by the appellants in C.A. No.7590 of 2021. Moreover, in the absence of any material available on record to show frequent communication between the parties, there could not have been a presumption of communication of UPSI by the appellant Balram Garg. The trading pattern of the appellants in C.A. No.7590 of 2021 cannot be the circumstantial evidence to prove the communication of UPSI by the appellant Balram Garg to the other appellants in C.A. No.7590 of 2021. There is no material on record for the WTM and the SAT to arrive at the finding that both late P.C. Gupta and the appellant Balram Garg communicated the UPSI to the other appellants in C.A. No.7590 of 2021. The said appellants in C.A. No.7590 of 2021 were not immediate relatives and were completely financially independent of the appellant Balram Garg and had nothing to do with the him in any decision making process relating to securities or even otherwise. The submission of the learned counsel of the respondent regarding the same residential address of the appellants also falls flat as admittedly the parties were residing in separate buildings on a large tract of land. Lastly, in our opinion, the SAT order suffers from non--application of mind and the same is a mere repetition of facts stated by the WTM. The Appellate Tribunal was exercising jurisdiction of a First Appellate Court and was bound to independently assess the evidenced and material on record, which it evidently failed to do.
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in securities.44. In light of the above principles of law laid down by this Court, it was imperative on the Respondent/SEBI to place on record relevant material to prove that the appellants in C.A. No.7590 of 2021, namely, Mrs. Shivani Gupta, Sachin Gupta, Amit Garg and Quick Developers Pvt. Ltd. were immediate relatives who were dependent financially on appellant Balram Garg or consult Balram Garg in taking decisions relating to trading in securities. However, SEBI failed to do so as has been already recorded by the WTM in its order dated 11.05.2021. The said appellants in C.A. No.7590 of 2021 were not immediate relatives and were completely financially independent of the appellant Balram Garg and had nothing to do with the said Balram Garg in any decision making process relating to securities or even otherwise.45. In the context of appellant no. 4 (in C.A. No.7590 of 2021), namely Quick Developers Pvt. Ltd., the record clearly reveals that it is neither a holding company or an associate company or a subsidiary company of PCJ nor the appellant Balram Garg has ever been the Director of Quick Developers Pvt. Ltd. Therefore, Quick Developers Pvt. Ltd. cannot be held to be a connected person vis--à--vis the appellant Balram Garg.46. Furthermore, reliance of the Respondent/SEBI on transactions between appellant Sachin Gupta and PCJ and the subsequent payments of rent by PCJ is against the principles of natural justice as these allegations were not part of the Show Cause Notices. To cement this proposition, reference could be made to Tarlochan Dev Sharma vs State of Punjab [(2001) 6 SCC 260] wherein this Court has held that:We are, therefore, clearly of the opinion that not only the principles of natural justice were violated by the factum of the impugned order having been founded on grounds at variance from the one in the show cause notice, of which appellant was not even made aware of let alone provided an opportunity to offer his explanation, the allegations made against the appellant did not even prima facie make out a case of abuse of powers of President.Similar observations have also been made by this Court in Hindustan Lever Ltd. vs. Director General (Investigation and Registration) [(2001) 2 SCC 474] .47. Lastly, we have given our anxious consideration to the judgements relied upon by the learned counsel of the Respondent viz. SEBI vs Kishore R. Ajmera [(2016) 6 SCC 368] and Dushyant N. Dalal vs. SEBI [(2017) 9 SCC 660] . Suffice it to hold that these cases are distinguishable on the facts of the present case, as the former is not a case of insider trading but that of Fraudulent/Manipulative Trade Practices; and the latter case relates to Interests and Penalty rather than the subject matter at hand. Reliance placed on the case of Kishore R. Ajmera (supra) to show that presumption can be drawn on the basis of immediate and relevant facts is contrary to law already settled by this Court in the case of Chintalapati Srinivasa Raju (supra) where it is held that a reasonable expectation to be in the know of things can only be based on reasonable inference drawn from foundational facts. It has further been held that merely because a person was related to the connected person cannot by itself be a foundational fact to draw an inference.48. To conclude, the entire case of the Respondents was premised on two important propositions, that firstly, there existed a close relationship between the appellants herein; and secondly, that based on the circumstantial evidence (trading pattern and timing of trading), it could be reasonably concluded that the appellants in C.A. No.7590 of 2021 were insiders in terms of Regulation 2(1)(g)(ii) of the PIT Regulations. However, as the discussion above would reveal, the WTM and SAT wrongly rejected the claim of estrangement of the Appellants in C.A. No.7590 of 2021, without appreciating the facts and evidence as was produced before them. The records and facts adequately establish that the there was a breakdown of ties between the parties, both at personal and professional level and that the said estrangement happened much prior to the two UPSI. Secondly, as has already been discussed, the SAT erred in holding the appellants in C.A. No.7590 of 2021 to be insiders in terms of regulation 2(1)(g)(ii) of the PIT Regulations on the basis of their trading pattern and their timing of trading (circumstantial evidence). We are of the firm opinion that there is no correlation between the UPSI and the sale of shares undertaken by the appellants in C.A. No.7590 of 2021. Moreover, in the absence of any material available on record to show frequent communication between the parties, there could not have been a presumption of communication of UPSI by the appellant Balram Garg. The trading pattern of the appellants in C.A. No.7590 of 2021 cannot be the circumstantial evidence to prove the communication of UPSI by the appellant Balram Garg to the other appellants in C.A. No.7590 of 2021. There is no material on record for the WTM and the SAT to arrive at the finding that both late P.C. Gupta and the appellant Balram Garg communicated the UPSI to the other appellants in C.A. No.7590 of 2021. The said appellants in C.A. No.7590 of 2021 were not immediate relatives and were completely financially independent of the appellant Balram Garg and had nothing to do with the him in any decision making process relating to securities or even otherwise. The submission of the learned counsel of the respondent regarding the same residential address of the appellants also falls flat as admittedly the parties were residing in separate buildings on a large tract of land. Lastly, in our opinion, the SAT order suffers from non--application of mind and the same is a mere repetition of facts stated by the WTM. The Appellate Tribunal was exercising jurisdiction of a First Appellate Court and was bound to independently assess the evidenced and material on record, which it evidently failed to do.
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BALBIR SINGH Vs. NEW INDIA ASSURANCE CO. LTD | 1. Leave granted. 2. The appellant who was working as a driver in a truck owned by the second respondent met with an accident on 15th September, l982 at 11.30 a.m. on the Jaipur highway. While he was alighting from the truck which was being driven by him, he was hit by another truck which was coming from behind, which resulted in his suffering multiple fractures. It was submitted by the learned counsel for the appellant that he suffered 95% disability which resulted in the amputation of right leg. 3. The second respondent informed the first respondent-insurance Company about the accident as the claim of the appellant had to be settled by the first respondent. The appellant was completely bed ridden for a long time and, so, there was delay in approaching the State Consumer Disputes Redressal Commission, Delhi complaining about the inaction of the first respondent in settling his claim and also claiming compensation for the injuries suffered by him in the accident. The State Commission dismissed the claim petition filed by the appellant on the ground of delay. The order passed by the State Commission was affirmed by the National Commission by an Order dated 22nd May, 2002. Thereafter, the appellant approached the Motor Accidents Claims Tribunal on 27th May, 2003 seeking compensation for the injuries suffered by him, but the same was withdrawn by him on 16th December,2004. 4. Subsequently, the appellant filed an application under the Employees Compensation Act before the Commissioner, Workmens Compensation (hereinafter referred to as the Commission) on 17th December, 2004. By an order dated 7th July, 2006, the Commissioner while taking note of the disability of the appellant in not being able to move out of the bed for a long period of time and thereafter his approaching every fora for relief and the fact that there was no repudiation of the contract by the Insurance company held, that the claim made by the appellant was not barred by limitation. After examining the matter on merits, the Commissioner directed payment of Rs. 3,90,411/-. In addition, an amount of Rs. 1,95,206/- was directed to be paid towards penalty as contemplated under section 4A of the Employees Compensation Act. The first respondent filed an appeal before the Delhi High Court challenging the order passed by the Commissioner. The appeal was allowed by the Delhi High Court and the order passed by the Commissioner dated 7th July, 2006 was set aside. The High Court went wrong in setting aside the order of the Commissioner on the ground that there was no discussion regarding limitation and no reasons were given by the Commissioner to condone the delay. There is a clear finding by the Commissioner that the first respondent did not repudiate the contract and hence it cannot be said that the period of limitation had started. There is a detailed consideration by the Commissioner about the disability of the Appellant for a long period of time and the fact of his approaching the Consumer fora and the Motor Accident Claims Tribunal. | 1[ds]The High Court went wrong in setting aside the order of the Commissioner on the ground that there was no discussion regarding limitation and no reasons were given by the Commissioner to condone the delay. There is a clear finding by the Commissioner that the first respondent did not repudiate the contract and hence it cannot be said that the period of limitation had started. There is a detailed consideration by the Commissioner about the disability of the Appellant for a long period of time and the fact of his approaching the Consumer fora and the Motor Accident Claims Tribunal. | 1 | 553 | 108 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
1. Leave granted. 2. The appellant who was working as a driver in a truck owned by the second respondent met with an accident on 15th September, l982 at 11.30 a.m. on the Jaipur highway. While he was alighting from the truck which was being driven by him, he was hit by another truck which was coming from behind, which resulted in his suffering multiple fractures. It was submitted by the learned counsel for the appellant that he suffered 95% disability which resulted in the amputation of right leg. 3. The second respondent informed the first respondent-insurance Company about the accident as the claim of the appellant had to be settled by the first respondent. The appellant was completely bed ridden for a long time and, so, there was delay in approaching the State Consumer Disputes Redressal Commission, Delhi complaining about the inaction of the first respondent in settling his claim and also claiming compensation for the injuries suffered by him in the accident. The State Commission dismissed the claim petition filed by the appellant on the ground of delay. The order passed by the State Commission was affirmed by the National Commission by an Order dated 22nd May, 2002. Thereafter, the appellant approached the Motor Accidents Claims Tribunal on 27th May, 2003 seeking compensation for the injuries suffered by him, but the same was withdrawn by him on 16th December,2004. 4. Subsequently, the appellant filed an application under the Employees Compensation Act before the Commissioner, Workmens Compensation (hereinafter referred to as the Commission) on 17th December, 2004. By an order dated 7th July, 2006, the Commissioner while taking note of the disability of the appellant in not being able to move out of the bed for a long period of time and thereafter his approaching every fora for relief and the fact that there was no repudiation of the contract by the Insurance company held, that the claim made by the appellant was not barred by limitation. After examining the matter on merits, the Commissioner directed payment of Rs. 3,90,411/-. In addition, an amount of Rs. 1,95,206/- was directed to be paid towards penalty as contemplated under section 4A of the Employees Compensation Act. The first respondent filed an appeal before the Delhi High Court challenging the order passed by the Commissioner. The appeal was allowed by the Delhi High Court and the order passed by the Commissioner dated 7th July, 2006 was set aside. The High Court went wrong in setting aside the order of the Commissioner on the ground that there was no discussion regarding limitation and no reasons were given by the Commissioner to condone the delay. There is a clear finding by the Commissioner that the first respondent did not repudiate the contract and hence it cannot be said that the period of limitation had started. There is a detailed consideration by the Commissioner about the disability of the Appellant for a long period of time and the fact of his approaching the Consumer fora and the Motor Accident Claims Tribunal.
### Response:
1
### Explanation:
The High Court went wrong in setting aside the order of the Commissioner on the ground that there was no discussion regarding limitation and no reasons were given by the Commissioner to condone the delay. There is a clear finding by the Commissioner that the first respondent did not repudiate the contract and hence it cannot be said that the period of limitation had started. There is a detailed consideration by the Commissioner about the disability of the Appellant for a long period of time and the fact of his approaching the Consumer fora and the Motor Accident Claims Tribunal.
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Zee Telefilms Limited (In Re) Vs. | Heard Mr. Bhatt for the appellants in both the appeals. Mr. Master is present for the Regional Director, Department of Company Affairs.2.Both the appeals are filed against the order passed by the learned single Judge on January 23, 2003, rejecting the Company Applications Nos.428 and 429 of 2002. Application No.428 of 2002 sought merger of Programme Asia Trading Co. Ltd. into Zee Telefilms Ltd. Application No.429 of 2002 was the application of the transferee company.3.The learned single Judge heard both the applications, perused the affidavit filed by the Regional Director. The affidavit referred to certain prosecutions under sections 217(5), 212(9), 209(5), 307(7) and 211(7) of the Companies Act. The learned Judge therefore formed an opinion that this was not a matter wherein leave under section 391 could be granted. It is this order which is challenged in these appeals.4.Mr. Bhatt, counsel for the appellants points out that firstly, the proviso to section 391(2) speaks of investigation proceedings in relation to the company under sections 235 to 251 of the Companies Act. These proceedings were not under those sections. That apart an additional affidavit has also been filed to place on record as to what those prosecutions/ proceedings are. We have gone through these papers. We do not find that these are proceedings which should stall in any manner the merger of Programme Asia Trading Co. Ltd. into Zee Telefilms Ltd. This is particularly so when the transferor company is a fully owned subsidiary company of the transferee company. Mr. Master has pointed out that the provisions of the proviso to section 391(2) are illustrative one and not exhaustive. In any case, what is material to note is that having drawn the attention of the court to the proceedings initiated against the companies, the Regional Director also in his affidavit did not object to the merger of the transferor company into the transferee company. It is needless to say that those proceedings will continue in accordance with law. | 1[ds]4.Mr. Bhatt, counsel for the appellants points out that firstly, the proviso to section 391(2) speaks of investigation proceedings in relation to the company under sections 235 to 251 of the Companies Act. These proceedings were not under those sections. That apart an additional affidavit has also been filed to place on record as to what those prosecutions/ proceedings are.We have gone through these papers. We do not find that these are proceedings which should stall in any manner the merger of Programme Asia Trading Co. Ltd. into Zee Telefilms Ltd. This is particularly so when the transferor company is a fully owned subsidiary company of the transferee company. Mr. Master has pointed out that the provisions of the proviso to section 391(2) are illustrative one and not exhaustive. In any case, what is material to note is that having drawn the attention of the court to the proceedings initiated against the companies, the Regional Director also in his affidavit did not object to the merger of the transferor company into the transferee company. It is needless to say that those proceedings will continue in accordance with law. | 1 | 375 | 211 | ### 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:
Heard Mr. Bhatt for the appellants in both the appeals. Mr. Master is present for the Regional Director, Department of Company Affairs.2.Both the appeals are filed against the order passed by the learned single Judge on January 23, 2003, rejecting the Company Applications Nos.428 and 429 of 2002. Application No.428 of 2002 sought merger of Programme Asia Trading Co. Ltd. into Zee Telefilms Ltd. Application No.429 of 2002 was the application of the transferee company.3.The learned single Judge heard both the applications, perused the affidavit filed by the Regional Director. The affidavit referred to certain prosecutions under sections 217(5), 212(9), 209(5), 307(7) and 211(7) of the Companies Act. The learned Judge therefore formed an opinion that this was not a matter wherein leave under section 391 could be granted. It is this order which is challenged in these appeals.4.Mr. Bhatt, counsel for the appellants points out that firstly, the proviso to section 391(2) speaks of investigation proceedings in relation to the company under sections 235 to 251 of the Companies Act. These proceedings were not under those sections. That apart an additional affidavit has also been filed to place on record as to what those prosecutions/ proceedings are. We have gone through these papers. We do not find that these are proceedings which should stall in any manner the merger of Programme Asia Trading Co. Ltd. into Zee Telefilms Ltd. This is particularly so when the transferor company is a fully owned subsidiary company of the transferee company. Mr. Master has pointed out that the provisions of the proviso to section 391(2) are illustrative one and not exhaustive. In any case, what is material to note is that having drawn the attention of the court to the proceedings initiated against the companies, the Regional Director also in his affidavit did not object to the merger of the transferor company into the transferee company. It is needless to say that those proceedings will continue in accordance with law.
### Response:
1
### Explanation:
4.Mr. Bhatt, counsel for the appellants points out that firstly, the proviso to section 391(2) speaks of investigation proceedings in relation to the company under sections 235 to 251 of the Companies Act. These proceedings were not under those sections. That apart an additional affidavit has also been filed to place on record as to what those prosecutions/ proceedings are.We have gone through these papers. We do not find that these are proceedings which should stall in any manner the merger of Programme Asia Trading Co. Ltd. into Zee Telefilms Ltd. This is particularly so when the transferor company is a fully owned subsidiary company of the transferee company. Mr. Master has pointed out that the provisions of the proviso to section 391(2) are illustrative one and not exhaustive. In any case, what is material to note is that having drawn the attention of the court to the proceedings initiated against the companies, the Regional Director also in his affidavit did not object to the merger of the transferor company into the transferee company. It is needless to say that those proceedings will continue in accordance with law.
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UNION OF INDIA AND OTHERS Vs. M.V. MOHANAN NAIR | that there has been a declaration of law by this Court under Article 141 of the Constitution. [underlining added] Raj Pals case having been dismissed on the ground that no sufficient cause was shown for the delay in refiling, Raj Pals case ought not to have been quoted as precedent of this Court by the High Courts. 46. The learned counsel for the intervenors has referred to the record note of the meetings of the Joint Committee of MACP held under the chairmanship of JS(Establishment), DoP&T on 15.09.2010 and other dates and drawn our attention to various items viz. Item No.1-Provide for Grade Pay of the Next Promotional Post under MACP; Item No.3-Option for Earlier ACP Scheme; Item No.8-Anomaly on Introduction of MACP Scheme; and Item No.29 - Modification in MACP Scheme. In response to the above submission, Union of India has filed additional written submission referring to the decision in various meetings of the Joint Committee on MACP held on various dates. 47. 2nd Meeting of the Joint Committee dated 15.09.2010:- In the 2 nd Meeting of the Joint Committee held on 15.09.2010, it was decided that organisations/cadres would be given the option to choose either the ACP Scheme or the MACP Scheme. It was also decided that individual options would not be permitted. Since the ACP and MACP Scheme were fallback options for stagnating employees, it was therefore decided that process of completing cadre restructuring in a time bound manner would solve the problem of stagnation. It was further decided that cadre structure had to be reviewed periodically to harmonise the functional needs of the organisation and career progression of employees. (Vide copy of O.M. dated 10.02.2011). 48. 3rd Meeting of the Joint Committee dated 15.03.2011:- In the 3 rd Meeting of the Joint Committee held on 15.03.2011, the staff side reiterated their demand that the MACP Scheme should be granted in the promotional hierarchy of posts rather than in the grade pay hierarchy. The official side had suggested that the Government was willing to consider a revision in the MACP Scheme to the effect that organisations/cadres shall have the option to choose either the ACP Scheme or the MACP Scheme. But the staff side stated that such a dispensation would not be practical and there was a need to explore other alternatives to solve the issue. Therefore, it was agreed between the staff side and the official side that there was no need to change the basic structure of MACP Scheme, but there was a need to separately examine those cases where MACP Scheme was less advantageous than the ACP Scheme (Vide the Minutes of the 3 rd Meeting of Joint Committee dated 15.03.2011). Pursuant to the decision of the 3 rd Meeting of Joint Committee, it was decided that the official side would write to the Ministry of Railways, Defence, Urban Development, Home Affairs and the Department of Posts to forward information in respect of the specific categories of employees where the MACP was less advantageous than the erstwhile ACP Scheme. Accordingly, these Ministries/Departments were requested to send specific cases wherein, it was less advantageous for employees under MACP Scheme as compared to ACP Scheme. It is stated that no Ministry/Department other than Ministry of Urban Development had responded. (Vide Copy of Minutes dated 15.03.2011) 49. Meeting of the Joint Committee dated 27.07.2012:- In the meeting of the Joint Committee held on 27.07.2012, the official side stated that it was not possible to give individual options to the employees to opt for erstwhile ACP Scheme in preference to MACP Scheme for availing the benefit of financial upgradation. 50. Letter dated 04.11.2013:- Pursuant to the Joint Committee meeting held on 27.07.2012, a letter dated 04.11.2013 was sent to the staff side making it clear that the solution lies in review of cadre structure in a time bound manner with a view to mitigate the problem of stagnation as the benefit of Modified Assurance Career Progression Scheme have been granted as a fallback option in the event of promotions not taking place in time. With regard to letter dated 04.11.2013 which relates only to Postal Department, it is clarified that in the Department of Posts, the erstwhile ACP Scheme was not operational for postal employees. These employees were covered under Time Bound One Promotion (TBOP)/Biennial Cadre Review (BCR) Schemes. The MACP Scheme for Central Government employees is a continuation of ACP Scheme. Insofar as Department of Posts is concerned, it was decided by the Department of Posts to adopt MACP Scheme in respect of postal employees also w.e.f. 01.09.2008. Accordingly, O.M. No.4-7/(MACPS)/2009-PCC dated 18.09.2009 was issued by Department of Posts to clarify that TBOP/BCR Schemes stand discontinued w.e.f. 01.09.2008 consequent upon introduction of MACPS to postal employees w.e.f. 01.09.2008. The O.M. dated 1-20/2008-PCC dated 04.11.2013 was issued to regulate the fixation of pay in respect of postal employees during the period 01.01.2006 to 31.08.2008 i.e. before the switch over to MACPS took place. It is stated that the O.M. dated 04.11.2013 was only in respect of postal employees governed under TBOP/BCR and does not relate to Central Government employees who were covered under erstwhile ACP Scheme. Therefore, this O.M. has no bearing on the issue in the said SLP pending before Honble Supreme Court of India. 51. The ACP Scheme which is now superseded by MACP Scheme is a matter of government policy. Interference with the recommendations of the expert body like Pay Commission and its recommendations for the MACP, would have serious impact on the public exchequer. The recommendations of the Pay Commission for MACP Scheme has been accepted by the Government and implemented. There is nothing to show that the Scheme is arbitrary or unjust warranting interference. Without considering the advantages in the MACP Scheme, the High Courts erred in interfering with the governments policy in accepting the recommendations of the Sixth Central Pay Commission by simply placing reliance upon Raj Pals case. The impugned orders cannot be sustained and are liable to be set aside. | 1[ds]25. Though various contentions have been raised assailing the MACP Scheme viz. financial upgradation in the next Grade Pay and no stepping up of pay on the ground that junior getting more pay, be it noted that the clauses of the MACP Scheme including the clause providing the financial upgradation in the next Grade Pay have not been challenged by the respondents. In the impugned judgments, the Tribunals/High Courts have only relied upon Raj Pals case and not gone into the MACP Scheme vis-à-vis erstwhile ACP Scheme and also not considered the merits of the contention of the respondents. We have therefore, considered the MACP Scheme vis-à-vis erstwhile ACP Scheme in the light of the contentions raised by the respondent26. As pointed out earlier, both ACP and MACP Schemes are in the nature of incentive schemes devised with the object of ensuring that the employees who are unable to avail of adequate promotional opportunities, get some relief from stagnation in the form of financial benefits. Under the MACP Scheme, financial upgradations are granted at three regular intervals on completion of 10-20-30 years of service without promotion. Hence, it is also intended to ensure that the employees are adequately incentivised to work efficiently despite not getting promotion for want of promotional avenue. The change in policy brought about by supersession of the ACP Scheme with the MACP Scheme is after well-deliberated and well-documented recommendations of the Sixth Central Pay Commission. Considering the various issues in the implementation of the ACP Scheme, the Pay Commission expressed its views the only other way is to bring systematic changes in the existing Scheme of ACP so that all the employees irrespective of the existing hierarchy structure in their organisations/cadres, get some benefit under it. The Commission therefore, recommended that the existing Scheme of ACP be continued with the modifications indicated thereon in the Report that the financial upgradation has to be in the next immediate Grade Pay. One of the reasons for the expert body recommending the MACP Scheme was that there were inter- departmental disparities where several departments had varying promotional hierarchies. As a result, the working of ACP Scheme under which an employee who stagnated for 12 years, was entitled to pay in the Pay Scale of the next promotional post, led to inter-departmental anomalies. The Pay Commission therefore, recommended MACP Scheme with a view to putting an end to the problem ensuing from inter-departmental disparitiesMACP Scheme envisages merely placement in the immediate next higher Grade Pay. By perusal of the MACP Scheme extracted earlier, it is seen that the words used in the Scheme are placement in the immediate next higher Grade Pay in the hierarchy of the recommended revised pay bands. The term Grade Pay in the next promotional post is conspicuously absent in the entire body of the MACP Scheme. The argument of the respondents that the benefit of MACP Scheme is referable to the promotional post, is de hors the MACP Scheme and cannot be accepted. Though ACP and MACP Schemes are intended to provide relief against stagnation, both the Schemes have different features. Pay scales under the Sixth Pay Commission and the MACP Scheme are stated to be more beneficial since it extends to the employees with time intervals with higher pay bands and various facilities which were not available under the ACP Scheme including the three financial upgradations in shorter time span. In any event, MACP Scheme has not been challenged by the respondents. As rightly contended by the learned ASG, the respondents cannot be permitted to cherry-pick beneficial features from the erstwhile ACP Scheme and also take advantage of the beneficial features in the MACP Scheme28. The object behind the MACP Scheme is to provide relief against the stagnation. If the arguments of the respondents are to be accepted, they would be entitled to be paid in accordance with the grade pay offered to a promotee; but yet not assume the responsibilities of a promotee29. The change in policy brought about by supersession of ACP Scheme with the MACP Scheme is after consideration of all the disparities and the representations of the employees. The Sixth Central Pay Commission is an expert body which has comprehensively examined all the issues and the representations as also the issue of stagnation and at the same time to promote efficiency in the functioning of the departments. MACP Scheme has been introduced on the recommendation of the Sixth Central Pay Commission which has been accepted by the Government of India. After accepting the recommendation of the Sixth Central Pay Commission, the ACP Scheme was withdrawn and the same was superseded by the MACP Scheme with effect from 01.09.2008. This is not some random exercise which is unilaterally done by the Government, rather, it is based on the opinion of the expert body – Sixth Central Pay Commission which has examined all the issues, various representations and disparities. Before making the recommendation for the Pay Scale/Revised Pay Scale, the Pay Commission takes into consideration the existing pay structure, the representations of the government servants and various other factors after which the recommendations are made. When the expert body like Pay Commission has comprehensively examined all the issues and representations and also took note of inter-departmental disparities owing to varying promotional hierarchies, the court should not interfere with the recommendations of the expert body. When the government has accepted the recommendation of the Pay Commission and has also implemented those, any interference by the court would have a serious impact on the public exchequerIn the present batch of cases where the respondents are claiming financial upgradation in the grade pay of promotional hierarchy, no grounds are made out to show that the MACP Scheme granting financial upgradation in the next grade pay is arbitrary and unjust; warranting interference. The implementation of the MACP Scheme is claimed to have led to certain anomalies; but as pointed out earlier, MACP Scheme itself is not under challengeRajpals case did not go into any details in respect of the overall features of the new MACP Scheme and did not consider the recommendations of the expert body which culminated in the new Scheme. The order passed in Raj Pals case could not have been taken as a precedent in other cases. This is all the more so when SLP (C) No.….CC 7467 of 2013 was dismissed by the Supreme Court on the ground of delay in refiling the Special Leave Petition and no decision was rendered on meritsDismissal of case by the Supreme Court on the ground of delay in filing/non-filing, is not a binding precedent:43. As noted above, SLP preferred by Union of India against the order dated 19.10.2011 passed by the High Court was dismissed on the ground that the delay in refiling has not been satisfactorily explainedRaj Pals case having been dismissed on the ground that no sufficient cause was shown for the delay in refiling, in our considered view, Raj Pals case ought not to have been quoted as a precedent of this Court by the High CourtsRaj Pals case having been dismissed on the ground that no sufficient cause was shown for the delay in refiling, Raj Pals case ought not to have been quoted as precedent of this Court by the High Courts51. The ACP Scheme which is now superseded by MACP Scheme is a matter of government policy. Interference with the recommendations of the expert body like Pay Commission and its recommendations for the MACP, would have serious impact on the public exchequer. The recommendations of the Pay Commission for MACP Scheme has been accepted by the Government and implemented. There is nothing to show that the Scheme is arbitrary or unjust warranting interference. Without considering the advantages in the MACP Scheme, the High Courts erred in interfering with the governments policy in accepting the recommendations of the Sixth Central Pay Commission by simply placing reliance upon Raj Pals case. The impugned orders cannot be sustained and are liable to be set aside44. Article 141 of the Constitution of India provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India, i.e. the pronouncement of the law on the point shall operate as a binding precedent on all courts within India. Law declared by the Supreme Court has to be essentially understood as a principle laid down by the court and it is this principle which has the effect of a precedent. A principle as understood from the word itself is a proposition which can only be delivered after examination of the matter on merits. It can never be in a summary manner, much less be rendered in a decision delivered on technical grounds, without entering into the merits at all. A decision, unaccompanied by reasons can never be said to be a law declared by the Supreme Court though it will bind the parties inter-se in drawing the curtain on the litigation. | 1 | 10,386 | 1,592 | ### 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:
that there has been a declaration of law by this Court under Article 141 of the Constitution. [underlining added] Raj Pals case having been dismissed on the ground that no sufficient cause was shown for the delay in refiling, Raj Pals case ought not to have been quoted as precedent of this Court by the High Courts. 46. The learned counsel for the intervenors has referred to the record note of the meetings of the Joint Committee of MACP held under the chairmanship of JS(Establishment), DoP&T on 15.09.2010 and other dates and drawn our attention to various items viz. Item No.1-Provide for Grade Pay of the Next Promotional Post under MACP; Item No.3-Option for Earlier ACP Scheme; Item No.8-Anomaly on Introduction of MACP Scheme; and Item No.29 - Modification in MACP Scheme. In response to the above submission, Union of India has filed additional written submission referring to the decision in various meetings of the Joint Committee on MACP held on various dates. 47. 2nd Meeting of the Joint Committee dated 15.09.2010:- In the 2 nd Meeting of the Joint Committee held on 15.09.2010, it was decided that organisations/cadres would be given the option to choose either the ACP Scheme or the MACP Scheme. It was also decided that individual options would not be permitted. Since the ACP and MACP Scheme were fallback options for stagnating employees, it was therefore decided that process of completing cadre restructuring in a time bound manner would solve the problem of stagnation. It was further decided that cadre structure had to be reviewed periodically to harmonise the functional needs of the organisation and career progression of employees. (Vide copy of O.M. dated 10.02.2011). 48. 3rd Meeting of the Joint Committee dated 15.03.2011:- In the 3 rd Meeting of the Joint Committee held on 15.03.2011, the staff side reiterated their demand that the MACP Scheme should be granted in the promotional hierarchy of posts rather than in the grade pay hierarchy. The official side had suggested that the Government was willing to consider a revision in the MACP Scheme to the effect that organisations/cadres shall have the option to choose either the ACP Scheme or the MACP Scheme. But the staff side stated that such a dispensation would not be practical and there was a need to explore other alternatives to solve the issue. Therefore, it was agreed between the staff side and the official side that there was no need to change the basic structure of MACP Scheme, but there was a need to separately examine those cases where MACP Scheme was less advantageous than the ACP Scheme (Vide the Minutes of the 3 rd Meeting of Joint Committee dated 15.03.2011). Pursuant to the decision of the 3 rd Meeting of Joint Committee, it was decided that the official side would write to the Ministry of Railways, Defence, Urban Development, Home Affairs and the Department of Posts to forward information in respect of the specific categories of employees where the MACP was less advantageous than the erstwhile ACP Scheme. Accordingly, these Ministries/Departments were requested to send specific cases wherein, it was less advantageous for employees under MACP Scheme as compared to ACP Scheme. It is stated that no Ministry/Department other than Ministry of Urban Development had responded. (Vide Copy of Minutes dated 15.03.2011) 49. Meeting of the Joint Committee dated 27.07.2012:- In the meeting of the Joint Committee held on 27.07.2012, the official side stated that it was not possible to give individual options to the employees to opt for erstwhile ACP Scheme in preference to MACP Scheme for availing the benefit of financial upgradation. 50. Letter dated 04.11.2013:- Pursuant to the Joint Committee meeting held on 27.07.2012, a letter dated 04.11.2013 was sent to the staff side making it clear that the solution lies in review of cadre structure in a time bound manner with a view to mitigate the problem of stagnation as the benefit of Modified Assurance Career Progression Scheme have been granted as a fallback option in the event of promotions not taking place in time. With regard to letter dated 04.11.2013 which relates only to Postal Department, it is clarified that in the Department of Posts, the erstwhile ACP Scheme was not operational for postal employees. These employees were covered under Time Bound One Promotion (TBOP)/Biennial Cadre Review (BCR) Schemes. The MACP Scheme for Central Government employees is a continuation of ACP Scheme. Insofar as Department of Posts is concerned, it was decided by the Department of Posts to adopt MACP Scheme in respect of postal employees also w.e.f. 01.09.2008. Accordingly, O.M. No.4-7/(MACPS)/2009-PCC dated 18.09.2009 was issued by Department of Posts to clarify that TBOP/BCR Schemes stand discontinued w.e.f. 01.09.2008 consequent upon introduction of MACPS to postal employees w.e.f. 01.09.2008. The O.M. dated 1-20/2008-PCC dated 04.11.2013 was issued to regulate the fixation of pay in respect of postal employees during the period 01.01.2006 to 31.08.2008 i.e. before the switch over to MACPS took place. It is stated that the O.M. dated 04.11.2013 was only in respect of postal employees governed under TBOP/BCR and does not relate to Central Government employees who were covered under erstwhile ACP Scheme. Therefore, this O.M. has no bearing on the issue in the said SLP pending before Honble Supreme Court of India. 51. The ACP Scheme which is now superseded by MACP Scheme is a matter of government policy. Interference with the recommendations of the expert body like Pay Commission and its recommendations for the MACP, would have serious impact on the public exchequer. The recommendations of the Pay Commission for MACP Scheme has been accepted by the Government and implemented. There is nothing to show that the Scheme is arbitrary or unjust warranting interference. Without considering the advantages in the MACP Scheme, the High Courts erred in interfering with the governments policy in accepting the recommendations of the Sixth Central Pay Commission by simply placing reliance upon Raj Pals case. The impugned orders cannot be sustained and are liable to be set aside.
### Response:
1
### Explanation:
MACP Scheme and cannot be accepted. Though ACP and MACP Schemes are intended to provide relief against stagnation, both the Schemes have different features. Pay scales under the Sixth Pay Commission and the MACP Scheme are stated to be more beneficial since it extends to the employees with time intervals with higher pay bands and various facilities which were not available under the ACP Scheme including the three financial upgradations in shorter time span. In any event, MACP Scheme has not been challenged by the respondents. As rightly contended by the learned ASG, the respondents cannot be permitted to cherry-pick beneficial features from the erstwhile ACP Scheme and also take advantage of the beneficial features in the MACP Scheme28. The object behind the MACP Scheme is to provide relief against the stagnation. If the arguments of the respondents are to be accepted, they would be entitled to be paid in accordance with the grade pay offered to a promotee; but yet not assume the responsibilities of a promotee29. The change in policy brought about by supersession of ACP Scheme with the MACP Scheme is after consideration of all the disparities and the representations of the employees. The Sixth Central Pay Commission is an expert body which has comprehensively examined all the issues and the representations as also the issue of stagnation and at the same time to promote efficiency in the functioning of the departments. MACP Scheme has been introduced on the recommendation of the Sixth Central Pay Commission which has been accepted by the Government of India. After accepting the recommendation of the Sixth Central Pay Commission, the ACP Scheme was withdrawn and the same was superseded by the MACP Scheme with effect from 01.09.2008. This is not some random exercise which is unilaterally done by the Government, rather, it is based on the opinion of the expert body – Sixth Central Pay Commission which has examined all the issues, various representations and disparities. Before making the recommendation for the Pay Scale/Revised Pay Scale, the Pay Commission takes into consideration the existing pay structure, the representations of the government servants and various other factors after which the recommendations are made. When the expert body like Pay Commission has comprehensively examined all the issues and representations and also took note of inter-departmental disparities owing to varying promotional hierarchies, the court should not interfere with the recommendations of the expert body. When the government has accepted the recommendation of the Pay Commission and has also implemented those, any interference by the court would have a serious impact on the public exchequerIn the present batch of cases where the respondents are claiming financial upgradation in the grade pay of promotional hierarchy, no grounds are made out to show that the MACP Scheme granting financial upgradation in the next grade pay is arbitrary and unjust; warranting interference. The implementation of the MACP Scheme is claimed to have led to certain anomalies; but as pointed out earlier, MACP Scheme itself is not under challengeRajpals case did not go into any details in respect of the overall features of the new MACP Scheme and did not consider the recommendations of the expert body which culminated in the new Scheme. The order passed in Raj Pals case could not have been taken as a precedent in other cases. This is all the more so when SLP (C) No.….CC 7467 of 2013 was dismissed by the Supreme Court on the ground of delay in refiling the Special Leave Petition and no decision was rendered on meritsDismissal of case by the Supreme Court on the ground of delay in filing/non-filing, is not a binding precedent:43. As noted above, SLP preferred by Union of India against the order dated 19.10.2011 passed by the High Court was dismissed on the ground that the delay in refiling has not been satisfactorily explainedRaj Pals case having been dismissed on the ground that no sufficient cause was shown for the delay in refiling, in our considered view, Raj Pals case ought not to have been quoted as a precedent of this Court by the High CourtsRaj Pals case having been dismissed on the ground that no sufficient cause was shown for the delay in refiling, Raj Pals case ought not to have been quoted as precedent of this Court by the High Courts51. The ACP Scheme which is now superseded by MACP Scheme is a matter of government policy. Interference with the recommendations of the expert body like Pay Commission and its recommendations for the MACP, would have serious impact on the public exchequer. The recommendations of the Pay Commission for MACP Scheme has been accepted by the Government and implemented. There is nothing to show that the Scheme is arbitrary or unjust warranting interference. Without considering the advantages in the MACP Scheme, the High Courts erred in interfering with the governments policy in accepting the recommendations of the Sixth Central Pay Commission by simply placing reliance upon Raj Pals case. The impugned orders cannot be sustained and are liable to be set aside44. Article 141 of the Constitution of India provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India, i.e. the pronouncement of the law on the point shall operate as a binding precedent on all courts within India. Law declared by the Supreme Court has to be essentially understood as a principle laid down by the court and it is this principle which has the effect of a precedent. A principle as understood from the word itself is a proposition which can only be delivered after examination of the matter on merits. It can never be in a summary manner, much less be rendered in a decision delivered on technical grounds, without entering into the merits at all. A decision, unaccompanied by reasons can never be said to be a law declared by the Supreme Court though it will bind the parties inter-se in drawing the curtain on the litigation.
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Zile Singh Vs. State Of Haryana | substituted. 24. The substitution of one text for the other pre-existing text is one of the known and well-recognised practices employed in legislative drafting. Substitution has to be distinguished from supersession or a mere repeal of an existing provision. 25. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (See Principles of Statutory Interpretation, ibid, p.565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. and Ors. vs. State of U.P. and Ors - (2002) 2 SCC 645, State of Rajasthan vs. Mangilal Pindwal - (1996) 5 SCC 60, Koteswar Vittal Kamath vs. K. Rangappa Baliga and Co. - (1969) 1 SCC 255 and A.L.V.R.S.T. Veerappa Chettiar vs. S. Michael & ors. - AIR 1963 SC 933 . In West U.P. Sugar Mills Association and Ors.s case (supra) a three-Judges Bench of this Court held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centering around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In Mangilal Pindwals case (supra) this Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force. In Koteswars case (supra) a three-Judges Bench of this Court emphasized the distinction between supersession of a rule and substitution of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. 26. In Javed (supra) it was held that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. The statute which confers the right to contest an election can also provide for the necessary qualifications and disqualifications for holding an elective office. The bar by way of disqualification created against holding the office of a member of a municipality by clause (c) of sub-section (1) of Section 13A was absolute. Merely because a disqualification is imposed by reference to certain facts which are referable to a date prior to the enactment of disqualification, the Act does not become retrospective in operation. No vested right was taken away. The First Amendment was not a piece of legislation having any retrospectivity. However, the legislature thought that it would be more reasonable if the disqualification was not applied by reference to a child born within a period of one year from the date of commencement of the Act. The period of one year was appointed keeping in view the period of gestation which is two hundred and eighty days as incorporated in Section 112 of the Indian Evidence Act of 1872 and added to it a little more margin of eighty five days. The proviso spells out this meaning but for the error in drafting. Even if there would have been no amendment (as introduced by the Second Amendment Act) the proviso as it originally stood, if subjected to judicial scrutiny, would have been so interpreted and the word after would have been read as upto or assigned that meaning so as to carry out the legislative intent and not to make a capital out of the draftsmans folly. Or, the proviso - if not read down - would have been declared void and struck down as being arbitrary and discriminatory inasmuch as the persons having more than two living children on the date of enactment of the Act and within one year thereafter and the persons having more than two living children after the date of one year could not have formed two classes capable of being distinguished on a well defined criterion so as to fulfill the purpose sought to be achieved by the legislature. However, the legislature got wiser by realizing its draftsmans mistake and stepped in by substituting the mistaken word after by the correct word upto which should have been there since very beginning. In our opinion the Second Amendment is declaratory in nature. It alters the text of the First Amendment in such manner as to remove the obvious absurdity therefrom and brings it in conformity with what the Legislature had really intended to provide. It explains and removes the obvious error and clarifies what the law always was and shall remain to be. The Second Amendment would operate retrospectively from the date of the First Amendment and in giving such operation no mandate of any law or principle is violated. Else, the evil sought to be curbed continues to exist for some period contrary to legislative intent. The application of rule against retrospectivity stands excepted from Second Amendment Act. 27. In Javed (supra) the Court has been at pains to point out how the growth of population of India was alarming and posed a menace to be checked. It was in national interest to check the growth of population by casting disincentives even through legislation. The First Amendment Act targets the evil and seeks to cure it. The legislative competence of the State is not disputed. Thus, keeping in view the general scope and purview of the statute, the remedy sought to be applied, the former state of law, the legislative intent and the employment of the expression - for the word `after the word `upto shall be substituted in the text of the Second Amendment, we have no doubt in our mind that the Second Amendment has the effect of amending the test of First Amendment ever since the date of commencement of the First Amendment, i.e., April 5, 1994. | 1[ds]11. According to the appellant, the disqualification imposed by Section 13A (1)(c) of the First Amendment remained in operation only for a period of one year and would have in ordinary course ceased to operate on the expiry of the period of one year from April 5, 1994. The citizens were justified in arranging their affairs including the enlargement of their families keeping in view the provision of law as it stood. However, the Second Amendment Act effective from 14.10.1994 made a difference. On that day, the Legislature specifically provided that a person having more than two children on or after expiry of one year shall stand disqualified. This period of one year, in the submission of the appellant, should be calculated from 4.10.1994 and not 5.4.1994 and if that be done the birth of the child on 13.8.1995 would not attract the disqualification13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only nova constitutio futuris formam imponere debet non praeteritisa new law ought to regulate what is to follow, not the past15. Though retrospectivity is not to be presumed and rather there is presumption against retrospectivity, according to Craies (Statute Law, Seventh Edition), it is open for the legislature to enact laws having retrospective operation. This can be achieved by express enactment or by necessary implication from the language employed. If it is a necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the Courts will give it such an operation. In the absence of a retrospective operation having been expressly given, the Courts may be called upon to construe the provisions and answer the question whether the legislature had sufficiently expressed that intention giving the Statute retrospectivity. Four factors are suggested as relevant: (i) general scope and purview of the statute; (ii) the remedy sought to be applied; (iii) the former state of the law; and (iv) what it was the legislature contemplated (p.388). The rule against retrospectivity does not extend to protect from the effect of a repeal a privilege which did not amount to accrued right (p.392)The retrospectivity is liable to be decided on a few touchstones such as: (1) the words used must expressly provide or clearly imply retrospective operation; (ii) the retrospectivity must be reasonable and not excessive or harsh, otherwise it runs the risk of being struck down as unconstitutional; (iii) where the legislation is introduced to overcome a judicial decision, the power cannot be used to subvert the decision without removing the statutory basis of the decision. There is no fixed formula for the expression of legislative intent to give retrospectivity to an enactment. A validating clause coupled with a substantive statutory change is only one of the methods to leave actions unsustainable under the unamended statute, undisturbed. Consequently, the absence of a validating clause would not by itself affect the retrospective operation of the statutory provision, if such retrospectivity is otherwise apparent26. In Javed (supra) it was held that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. The statute which confers the right to contest an election can also provide for the necessary qualifications and disqualifications for holding an elective office. The bar by way of disqualification created against holding the office of a member of a municipality by clause (c) ofn (1) of Section 13A was absolute. Merely because a disqualification is imposed by reference to certain facts which are referable to a date prior to the enactment of disqualification, the Act does not become retrospective in operation. No vested right was taken away. The First Amendment was not a piece of legislation having any retrospectivity. However, the legislature thought that it would be more reasonable if the disqualification was not applied by reference to a child born within a period of one year from the date of commencement of the Act. The period of one year was appointed keeping in view the period of gestation which is two hundred and eighty days as incorporated in Section 112 of the Indian Evidence Act of 1872 and added to it a little more margin of eighty five days. The proviso spells out this meaning but for the error in drafting. Even if there would have been no amendment (as introduced by the Second Amendment Act) the proviso as it originally stood, if subjected to judicial scrutiny, would have been so interpreted and the word after would have been read as upto or assigned that meaning so as to carry out the legislative intent and not to make a capital out of the draftsmans folly. Or, the provisoif not read downwould have been declared void and struck down as being arbitrary and discriminatory inasmuch as the persons having more than two living children on the date of enactment of the Act and within one year thereafter and the persons having more than two living children after the date of one year could not have formed two classes capable of being distinguished on a well defined criterion so as to fulfill the purpose sought to be achieved by the legislature. However, the legislature got wiser by realizing its draftsmans mistake and stepped in by substituting the mistaken word after by the correct word upto which should have been there since very beginning. In our opinion the Second Amendment is declaratory in nature. It alters the text of the First Amendment in such manner as to remove the obvious absurdity therefrom and brings it in conformity with what the Legislature had really intended to provide. It explains and removes the obvious error and clarifies what the law always was and shall remain to be. The Second Amendment would operate retrospectively from the date of the First Amendment and in giving such operation no mandate of any law or principle is violated. Else, the evil sought to be curbed continues to exist for some period contrary to legislative intent. The application of rule against retrospectivity stands excepted from Second Amendment Act27. In Javed (supra) the Court has been at pains to point out how the growth of population of India was alarming and posed a menace to be checked. It was in national interest to check the growth of population by casting disincentives even through legislation. The First Amendment Act targets the evil and seeks to cure it. The legislative competence of the State is not disputed. Thus, keeping in view the general scope and purview of the statute, the remedy sought to be applied, the former state of law, the legislative intent and the employment of the expressionfor the word `after the word `upto shall be substituted in the text of the Second Amendment, we have no doubt in our mind that the Second Amendment has the effect of amending the test of First Amendment ever since the date of commencement of the First Amendment, i.e., April 5, 1994. | 1 | 4,734 | 1,358 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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substituted. 24. The substitution of one text for the other pre-existing text is one of the known and well-recognised practices employed in legislative drafting. Substitution has to be distinguished from supersession or a mere repeal of an existing provision. 25. Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (See Principles of Statutory Interpretation, ibid, p.565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. and Ors. vs. State of U.P. and Ors - (2002) 2 SCC 645, State of Rajasthan vs. Mangilal Pindwal - (1996) 5 SCC 60, Koteswar Vittal Kamath vs. K. Rangappa Baliga and Co. - (1969) 1 SCC 255 and A.L.V.R.S.T. Veerappa Chettiar vs. S. Michael & ors. - AIR 1963 SC 933 . In West U.P. Sugar Mills Association and Ors.s case (supra) a three-Judges Bench of this Court held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centering around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In Mangilal Pindwals case (supra) this Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force. In Koteswars case (supra) a three-Judges Bench of this Court emphasized the distinction between supersession of a rule and substitution of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. 26. In Javed (supra) it was held that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. The statute which confers the right to contest an election can also provide for the necessary qualifications and disqualifications for holding an elective office. The bar by way of disqualification created against holding the office of a member of a municipality by clause (c) of sub-section (1) of Section 13A was absolute. Merely because a disqualification is imposed by reference to certain facts which are referable to a date prior to the enactment of disqualification, the Act does not become retrospective in operation. No vested right was taken away. The First Amendment was not a piece of legislation having any retrospectivity. However, the legislature thought that it would be more reasonable if the disqualification was not applied by reference to a child born within a period of one year from the date of commencement of the Act. The period of one year was appointed keeping in view the period of gestation which is two hundred and eighty days as incorporated in Section 112 of the Indian Evidence Act of 1872 and added to it a little more margin of eighty five days. The proviso spells out this meaning but for the error in drafting. Even if there would have been no amendment (as introduced by the Second Amendment Act) the proviso as it originally stood, if subjected to judicial scrutiny, would have been so interpreted and the word after would have been read as upto or assigned that meaning so as to carry out the legislative intent and not to make a capital out of the draftsmans folly. Or, the proviso - if not read down - would have been declared void and struck down as being arbitrary and discriminatory inasmuch as the persons having more than two living children on the date of enactment of the Act and within one year thereafter and the persons having more than two living children after the date of one year could not have formed two classes capable of being distinguished on a well defined criterion so as to fulfill the purpose sought to be achieved by the legislature. However, the legislature got wiser by realizing its draftsmans mistake and stepped in by substituting the mistaken word after by the correct word upto which should have been there since very beginning. In our opinion the Second Amendment is declaratory in nature. It alters the text of the First Amendment in such manner as to remove the obvious absurdity therefrom and brings it in conformity with what the Legislature had really intended to provide. It explains and removes the obvious error and clarifies what the law always was and shall remain to be. The Second Amendment would operate retrospectively from the date of the First Amendment and in giving such operation no mandate of any law or principle is violated. Else, the evil sought to be curbed continues to exist for some period contrary to legislative intent. The application of rule against retrospectivity stands excepted from Second Amendment Act. 27. In Javed (supra) the Court has been at pains to point out how the growth of population of India was alarming and posed a menace to be checked. It was in national interest to check the growth of population by casting disincentives even through legislation. The First Amendment Act targets the evil and seeks to cure it. The legislative competence of the State is not disputed. Thus, keeping in view the general scope and purview of the statute, the remedy sought to be applied, the former state of law, the legislative intent and the employment of the expression - for the word `after the word `upto shall be substituted in the text of the Second Amendment, we have no doubt in our mind that the Second Amendment has the effect of amending the test of First Amendment ever since the date of commencement of the First Amendment, i.e., April 5, 1994.
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praeteritisa new law ought to regulate what is to follow, not the past15. Though retrospectivity is not to be presumed and rather there is presumption against retrospectivity, according to Craies (Statute Law, Seventh Edition), it is open for the legislature to enact laws having retrospective operation. This can be achieved by express enactment or by necessary implication from the language employed. If it is a necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the Courts will give it such an operation. In the absence of a retrospective operation having been expressly given, the Courts may be called upon to construe the provisions and answer the question whether the legislature had sufficiently expressed that intention giving the Statute retrospectivity. Four factors are suggested as relevant: (i) general scope and purview of the statute; (ii) the remedy sought to be applied; (iii) the former state of the law; and (iv) what it was the legislature contemplated (p.388). The rule against retrospectivity does not extend to protect from the effect of a repeal a privilege which did not amount to accrued right (p.392)The retrospectivity is liable to be decided on a few touchstones such as: (1) the words used must expressly provide or clearly imply retrospective operation; (ii) the retrospectivity must be reasonable and not excessive or harsh, otherwise it runs the risk of being struck down as unconstitutional; (iii) where the legislation is introduced to overcome a judicial decision, the power cannot be used to subvert the decision without removing the statutory basis of the decision. There is no fixed formula for the expression of legislative intent to give retrospectivity to an enactment. A validating clause coupled with a substantive statutory change is only one of the methods to leave actions unsustainable under the unamended statute, undisturbed. Consequently, the absence of a validating clause would not by itself affect the retrospective operation of the statutory provision, if such retrospectivity is otherwise apparent26. In Javed (supra) it was held that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. The statute which confers the right to contest an election can also provide for the necessary qualifications and disqualifications for holding an elective office. The bar by way of disqualification created against holding the office of a member of a municipality by clause (c) ofn (1) of Section 13A was absolute. Merely because a disqualification is imposed by reference to certain facts which are referable to a date prior to the enactment of disqualification, the Act does not become retrospective in operation. No vested right was taken away. The First Amendment was not a piece of legislation having any retrospectivity. However, the legislature thought that it would be more reasonable if the disqualification was not applied by reference to a child born within a period of one year from the date of commencement of the Act. The period of one year was appointed keeping in view the period of gestation which is two hundred and eighty days as incorporated in Section 112 of the Indian Evidence Act of 1872 and added to it a little more margin of eighty five days. The proviso spells out this meaning but for the error in drafting. Even if there would have been no amendment (as introduced by the Second Amendment Act) the proviso as it originally stood, if subjected to judicial scrutiny, would have been so interpreted and the word after would have been read as upto or assigned that meaning so as to carry out the legislative intent and not to make a capital out of the draftsmans folly. Or, the provisoif not read downwould have been declared void and struck down as being arbitrary and discriminatory inasmuch as the persons having more than two living children on the date of enactment of the Act and within one year thereafter and the persons having more than two living children after the date of one year could not have formed two classes capable of being distinguished on a well defined criterion so as to fulfill the purpose sought to be achieved by the legislature. However, the legislature got wiser by realizing its draftsmans mistake and stepped in by substituting the mistaken word after by the correct word upto which should have been there since very beginning. In our opinion the Second Amendment is declaratory in nature. It alters the text of the First Amendment in such manner as to remove the obvious absurdity therefrom and brings it in conformity with what the Legislature had really intended to provide. It explains and removes the obvious error and clarifies what the law always was and shall remain to be. The Second Amendment would operate retrospectively from the date of the First Amendment and in giving such operation no mandate of any law or principle is violated. Else, the evil sought to be curbed continues to exist for some period contrary to legislative intent. The application of rule against retrospectivity stands excepted from Second Amendment Act27. In Javed (supra) the Court has been at pains to point out how the growth of population of India was alarming and posed a menace to be checked. It was in national interest to check the growth of population by casting disincentives even through legislation. The First Amendment Act targets the evil and seeks to cure it. The legislative competence of the State is not disputed. Thus, keeping in view the general scope and purview of the statute, the remedy sought to be applied, the former state of law, the legislative intent and the employment of the expressionfor the word `after the word `upto shall be substituted in the text of the Second Amendment, we have no doubt in our mind that the Second Amendment has the effect of amending the test of First Amendment ever since the date of commencement of the First Amendment, i.e., April 5, 1994.
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G. Sarana Vs. University of Lucknow and Others | A. K. Karipaks case (supra), reiterated in S. Parthasarthi v. State of Andhra Pradesh([1974] S.L.R. 427.) and followed by the High Court of Jarainu &Kashmir in Farooq Ahmed Pandey and Ors. v. Principal Regional Engineering College &Anr.([1975] J &K.L.R. 427.) the real question is not whether a member of an administrative Board while exercising quasi-judicial powers or discharging quasi-judicial functions was biased, for it is difficult to prove the mind of a person. What has to be seen is whether there is a reasonable ground for believing that he was likely to have been biased. In deciding the question of bias, human probabilities and ordinary course of human conduct have to be taken into consideration. In a group de liberation and decision like that of a Selection Board, the members do not function as computers. Each member of the group or board is bound to influence the others, more so if the member concerned is a person with special knowledge. His bias is likely to operate in a subtle manner.At page 156 of "Principles of Administrative Law" by J.A.G. Griffith and H. Street (Fourth Edition), the position with regard to bias is aptly and succinctly stated as follows:-"The prohibition of bias strikes against factors which may improperly influence a judge in deciding in favour of one party. The first of the three disabling types of bias is bias on the subject-matter. Only rarely will this bias invalidate proceedings. "A mere general interest in the general object to be pursued would not disqualify, " said Field J., holding that a magistrate who subscribed to the Royal Society for the Prevention of Cruelty to Animals was not thereby disabed from trying a charge brought by that body of cruelty to a horse. There must be so me direct connection with the litigation. If there is such prejudice, on the subject-matter that , the court has reached fixed and unalterable conclusions not founded on reason or understanding, so that there is not a fair hearing, that is bias of which the courts wilt take account, as where a justice announced his intention of convicting anyone coming before him on a charge of supplying liquor after the permitted hours ...........Secondly, a pecuniary interest, however, slight will disqualify, even though it is not proved that the decision is in any way affected.The third type of bias is personal bias. A Judge may be a relative, friend or business associate of a party, or he may be personally hostile as a result of events happening either before or during the course of a trial. The courts have not been consistent in laying down when bias of this type will. invalidate a hearing. The House of Lords in Frome United Brewering v. Bath Justices ([1926] A.C. 586.) approved an earlier test of whether "there is a real likelihood of bias." the House of Lords has since approved a dictum of Lord Hewart that "justice should not only be done, , but should manifestly and undoubtedly be seen to be done" although it did not mention another test suggested by him in the same judgment: Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice."At page 225 of hi s Treatise on "Judicial Review of Administrative Action" (Third Edition), Prof. S.A. De Smith, has stated as follows with regard to Reports and Preliminary decisions:--"The case-law on the point is thin, but on principle it would seem that where a report or determination lacking final effect may nevertheless have a seriously judicial effect on the legally protected interests of individuals (e.g. when it is a necessary prerequisite of a final order) the person making the report or preliminary decision must not be affected by interest or likelihood of bias."6. From the above discussion, it clearly follows that what has to be seen in a case where there is an allegation of bias, in respect of a member of an administrative Board or body is whether there is a reasonable ground for believing that he was likely to have been biased. In other words whether there is substantial possibility of bias animating the mind of the member against the aggrieved party.We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood or bias as despite the fact that, the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution. of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lals case (Supra) where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting:---"It seems dear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point."7. It is also difficult to understand how the writ petition or for that matter the present appeal before us is maintainable when the recommenlation of the Selection Committee has still to be scrutinzed by the Executive Council of the University and either accepted or rejected by and other remedies by way of representation to. the Executive Council and an application for reference of the matter under section 68 of the Uttar Pradesh Universities (Reenactment and Amendment) Act, 1974, the Chancellor are still open to the appellant and have not been exmusted.8. | 1[ds]From the above discussion, it clearly follows that what has to be seen in a case where there is an allegation of bias, in respect of a member of an administrative Board or body is whether there is a reasonable ground for believing that he was likely to have been biased. In other words whether there is substantial possibility of bias animating the mind of the member against the aggrieved party.We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood or bias as despite the fact that, the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution. of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lals case (Supra) where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver againstis also difficult to understand how the writ petition or for that matter the present appeal before us is maintainable when the recommenlation of the Selection Committee has still to be scrutinzed by the Executive Council of the University and either accepted or rejected by and other remedies by way of representation to. the Executive Council and an application for reference of the matter under section 68 of the Uttar Pradesh Universities (Reenactment and Amendment) Act, 1974, the Chancellor are still open to the appellant and have not been exmusted. | 1 | 2,810 | 339 | ### 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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A. K. Karipaks case (supra), reiterated in S. Parthasarthi v. State of Andhra Pradesh([1974] S.L.R. 427.) and followed by the High Court of Jarainu &Kashmir in Farooq Ahmed Pandey and Ors. v. Principal Regional Engineering College &Anr.([1975] J &K.L.R. 427.) the real question is not whether a member of an administrative Board while exercising quasi-judicial powers or discharging quasi-judicial functions was biased, for it is difficult to prove the mind of a person. What has to be seen is whether there is a reasonable ground for believing that he was likely to have been biased. In deciding the question of bias, human probabilities and ordinary course of human conduct have to be taken into consideration. In a group de liberation and decision like that of a Selection Board, the members do not function as computers. Each member of the group or board is bound to influence the others, more so if the member concerned is a person with special knowledge. His bias is likely to operate in a subtle manner.At page 156 of "Principles of Administrative Law" by J.A.G. Griffith and H. Street (Fourth Edition), the position with regard to bias is aptly and succinctly stated as follows:-"The prohibition of bias strikes against factors which may improperly influence a judge in deciding in favour of one party. The first of the three disabling types of bias is bias on the subject-matter. Only rarely will this bias invalidate proceedings. "A mere general interest in the general object to be pursued would not disqualify, " said Field J., holding that a magistrate who subscribed to the Royal Society for the Prevention of Cruelty to Animals was not thereby disabed from trying a charge brought by that body of cruelty to a horse. There must be so me direct connection with the litigation. If there is such prejudice, on the subject-matter that , the court has reached fixed and unalterable conclusions not founded on reason or understanding, so that there is not a fair hearing, that is bias of which the courts wilt take account, as where a justice announced his intention of convicting anyone coming before him on a charge of supplying liquor after the permitted hours ...........Secondly, a pecuniary interest, however, slight will disqualify, even though it is not proved that the decision is in any way affected.The third type of bias is personal bias. A Judge may be a relative, friend or business associate of a party, or he may be personally hostile as a result of events happening either before or during the course of a trial. The courts have not been consistent in laying down when bias of this type will. invalidate a hearing. The House of Lords in Frome United Brewering v. Bath Justices ([1926] A.C. 586.) approved an earlier test of whether "there is a real likelihood of bias." the House of Lords has since approved a dictum of Lord Hewart that "justice should not only be done, , but should manifestly and undoubtedly be seen to be done" although it did not mention another test suggested by him in the same judgment: Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice."At page 225 of hi s Treatise on "Judicial Review of Administrative Action" (Third Edition), Prof. S.A. De Smith, has stated as follows with regard to Reports and Preliminary decisions:--"The case-law on the point is thin, but on principle it would seem that where a report or determination lacking final effect may nevertheless have a seriously judicial effect on the legally protected interests of individuals (e.g. when it is a necessary prerequisite of a final order) the person making the report or preliminary decision must not be affected by interest or likelihood of bias."6. From the above discussion, it clearly follows that what has to be seen in a case where there is an allegation of bias, in respect of a member of an administrative Board or body is whether there is a reasonable ground for believing that he was likely to have been biased. In other words whether there is substantial possibility of bias animating the mind of the member against the aggrieved party.We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood or bias as despite the fact that, the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution. of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lals case (Supra) where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting:---"It seems dear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point."7. It is also difficult to understand how the writ petition or for that matter the present appeal before us is maintainable when the recommenlation of the Selection Committee has still to be scrutinzed by the Executive Council of the University and either accepted or rejected by and other remedies by way of representation to. the Executive Council and an application for reference of the matter under section 68 of the Uttar Pradesh Universities (Reenactment and Amendment) Act, 1974, the Chancellor are still open to the appellant and have not been exmusted.8.
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From the above discussion, it clearly follows that what has to be seen in a case where there is an allegation of bias, in respect of a member of an administrative Board or body is whether there is a reasonable ground for believing that he was likely to have been biased. In other words whether there is substantial possibility of bias animating the mind of the member against the aggrieved party.We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood or bias as despite the fact that, the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution. of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lals case (Supra) where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver againstis also difficult to understand how the writ petition or for that matter the present appeal before us is maintainable when the recommenlation of the Selection Committee has still to be scrutinzed by the Executive Council of the University and either accepted or rejected by and other remedies by way of representation to. the Executive Council and an application for reference of the matter under section 68 of the Uttar Pradesh Universities (Reenactment and Amendment) Act, 1974, the Chancellor are still open to the appellant and have not been exmusted.
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Axis Mutual Fund Through Its Trustee Axis Mutual Fund Trustee Company Limited Vs. The State of Maharashtra Through The Government Pleader High Court & Others | Trust. But, thereafter, the assessees appeals were allowed by the Appellate Assistant Commissioner against assessment for the years 1955-56 to 1959-60 and the incomes of the two funds were separately assessed for the assessment years 1960-61 and 1961-62. Thus, the assessee was described in the one case as the trustee of the Nizams Family Trust Reserve Fund and in the other as the trustee of the Nizams Family Trust Expenses Account. However, the Income Tax Officer being of the opinion that there was only one settlement under the Trust Deed, reopened the assessments for the assessment years 1960-61 and 1961-62 under clause (a) of section 147 of the Income Tax Act, 1961 in order to assess the trustees on the combined income of the Reserve Fund and the Family Trust Expenses Account. He made separate original assessments for the assessment years 1962-63 to 1965-66. The assessee appealed and the first appellate authority cancelled the assessment for all the years. The Revenue appealed to the Income Tax Appellate Tribunal, but the view taken by the first appellate authority was upheld by the tribunal and the appeals were dismissed. Then, the questions were referred for opinion of the High Court of Andhra Pradesh and they were answered in the negative. Hence, the Revenue appealed. That is how the primary question in the appeals before the Honble Supreme Court was whether the incomes arising from the Reserve Fund and the Family Trust Expenses Account can be assessed separately or not.45. Mr. Sridharans reliance on paragraphs 7, 8, 9 and 11 must be seen in this context. The tax was not identical to the one before us. It was a distinct tax legislation, namely, the Income Tax Act, 1961. The issue was, whether the incomes arising from the Reserve Fund and the Family Trust Expenses Account of the Nizams Family Trust can be assessed separately or must be aggregated in a single assessment. It is in this backdrop that the Trust Deed was referred and the Honble Supreme Court concluded that there may be separate funds created, but there was a notional division of the original trust fund. It is not, therefore, a case where separate trusts were created or separate heads were to constitute separate incomes. The objects of the two funds were also demarcated clearly. There is no intermingling of the funds. With all this, the settlor intended to create separate trust, is the conclusion of the High Court, which the Revenue assailed. However, bearing in mind the nature of the tax, the typical nature of the Deed of Trust, the appeals were dismissed. The court, in the context of the incomes, concluded that they cannot be aggregated in one single assessment, but must be assessed separately.46. Such is not the case before us. There is a single Deed of Trust. There may be separate schemes, but there was never any intent as is now sought to be culled out and to create separate Trust. This is not a case where separate Trusts were created and hence, the principle relied upon by Mr. Sridharan from several works on Law of Trust and to the effect that receipts from Axis Mutual Fund ETF alone have to be considered for there is formation of more than one trust by the Deed of Trust and that is permissible, has no application. This has no application here because the earlier principle and based on the case of Commissioner of Income Tax, Bombay City 1, Bombay vs. Manilal Dhanji, Bombay (1962) 44 ITR 876 ) is inapplicable. This is not a case where the settlor has created more trusts under a single Trust Deed. This is a clear case where the Deed of Trust permits floating one or more schemes. That is not equivalent to creation of separate Trusts. It is in these circumstances that the assessing officer, the first appellate authority and the tribunal all rightly concluded that the set-off available under Rule 53 has to be reduced. It shall be accordingly in part or full in the event of any of the contingencies specified and to the extent specified in sub-rule (6) of Rule 53. Pertinently, the set-off has not been disallowed in full. It is hold that in the case clearly specified of gross receipts of a dealer in any year and if from that, receipts on account of sale are less than 50% of the total receipts, then, insofar as the dealer, who is not a hotel or restaurant, the set-off is permissible only on those purchases effected in that year where the corresponding goods are sold or resold within six months from the date of purchase. There is no creation of separate Trusts, but separate schemes under a single Trust Deed are floated.47. To our mind, therefore, none of the authorities were in any error nor their view can be termed as perverse while granting partial relief to the petitioner. We do not see how the view taken by the first appellate authority in the facts and circumstances peculiar to the petitioners case is perverse. We are of the view that the conclusion reached by the first appellate authority is imminently possible. It is evident from the same that the petitioner obtained registration under the MVAT Act. It invested in the gold and disposed it of, may be on behalf of the customers. However, it paid VAT on it and was held liable to pay interest if the payment of VAT is delayed. Hence, the first appellate authority has rightly concluded that the tax amount, together with interest is payable. He confirmed the demand to that extent. The tribunal also confirmed this view. It concurred with the assessing officer and the first appellate authority as both took a view on facts and on law, which is not perverse or vitiated by error of law apparent on the face of the record. In these circumstances, the dis- allowance of input tax credit under Rule 53(6)(b) was also confirmed and in our opinion, rightly. | 0[ds]34. In the appeal before the tribunal, various grounds were raised, but what we essentially find is that in the stay application and at the final arguments, an attempt was made to point out that independentis maintained by the petitioner in respect of each scheme. The exemption from payment of income tax as per section 10(23(d) of the Income Tax Act, 1961 was pointed out. The tribunal held that in the case of M/s. Religare Mutual Fund vs. The State of Maharashtra (VAT Second Appeal No. 138 of 2013), decided on 27th April, 2016 it has already taken a view that an assessee of this nature is not entitled to claim input tax credit in respect of gold, which is not sold within six months from the date of purchase. Hence, there is no reason to take a different view. That is how it directed payment of basic tax amount of Rs.3,10,79,343/2. We are afraid, we cannot accept this argument and for more than one reason. A careful perusal of the Deed of Trust would denote that the settlor is desirous of establishing a mutual fund to be called as Axis Mutual Fund as part of mutual fund business for investment in a scheme, as may be permitted under the applicable laws and for providing facilities for participation by subscribers and holders of units as beneficiaries in the schemes. The trustee company Axis Mutual Fund Trust Limited has entrusted the sum of Rs.1 lakh as initial contribution towards the corpus of the mutual fund and then it is stated that the trustee company, namely, Axis Mutual Fund Trust Limited shall offer to the public the units in the schemes for making group or collective investments in accordance with and as permitted under the regulations and subject to the terms and conditions set out. It then says that at the request of the settlor, the trustee company has agreed to act as the trustee of the Mutual Fund in accordance with the terms and conditions specifically set out, as is testified by the execution by them of these presents and in accordance with the regulations and in accordance with the provisions of the Indian Trust Act, 1882. It is also intended that this Trust Deed be binding on the unit holders of the relevant schemes to the extent permissible under applicable laws. Thereafter, there are various clauses and which include investment limitations, responsibilities, obligations and rights of the trustee company, internal control of the trustee company and authority to the trustee company to enter into investment management agreement. The liability of mutual fund and other aspects are also covered by this deed. All these details were forwarded to the assessing authority and it was stated that there are letters addressed to banks and other stake holders. Before us, reliance is placed on this to urge that the petitioner purchased gold from registered dealers based on subscription request received from customers, but it does not purchase/sell any gold when units are traded on the stock exchange. Sample invoices are annexed to the petition to show that gold worth Rs.522,48,59,036/was purchased from a registered dealer for the assessing yearby the petitioner. It claimed aof the tax amount of Rs.5,17,31,276/on purchase of gold under the provisions of section 48 of the MVAT Act read with Rule 52 of the MVAT Rules. It duly adjusted thed of Rs.3,10,79,343/against its output VAT liabilities in accordance with the provisions of Rule 55 of the MVAT Rules. Consequently, the petitioner applied for refund of excess input tax credit amounting to Rs.2,06,51,993/and relied upon sample copies of the invoices for sale of gold. It also relied upon the tax liability discharged on the sale of gold by referring to the audit reports. It submitted its details, but the assessing officer was not satisfied on the ground that the goods purchased by the petitioner, on which input tax credit is claimed, are sold within a period of six months from the date of purchase. The argument was that this Rule 53(6)(b) is not applicable.43. We do not see any merit in this argument either. The entire foundation of the argument is that each trust floated by the company is a separate trust in itself and while assessing the liability of the trustee company, which is acting for and on behalf of Axis Gold ETF Scheme, only receipts from this trust/scheme are to be considered and merely because the same person acts as a trustee for different schemes will not affect the legal position that there is a separate trust for each of the schemes. The internal report for the 35 schemes has been relied upon and a consolidated document Exhibit L is referred in that regard. It is urged that the assessing authority has considered receipts on account of sale of gold in the numerator (receipts on account of sale) from these financial statements of Axis Mutual ETF. However, the assessing authority has considered total receipts of schemes in the denominator from this consolidated printout of schemes. Hence, all the authorities have considered receipts from the activities of all schemes instead of considering the receipts of Axis Mutual ETF Scheme alone. This is taken to be an erroneous approach.44. We find no merit in the argument of Mr. Sridharan in this behalf. The sheet anchor of this argument is the judgment in the case of Nizams Family Trust (supra). Nizams Family Trust was a case arising under the Income Tax Act. The Revenue preferred appeal against the common judgment of the High Court of Andhra Pradesh, because it answered the questions framed by the Honble Supreme Court in favour of the assessee. One of the questions was, whether the income arising from the Reserve Fund and the Expenses Account of the Nizams Family Trust Deed dated 10th May, 1950 can be aggregated in a single assessment for each of the assessment years6. There, the facts were that Deed of Trust dated 10th May, 1950 created a Family Trust. A corpus of nine crores in Government securities was transferred to the trustees under that deed. The corpus was notionally divided into 175 equal units. Five units were to constitute a fund called the Reserve Fund and 3.5 units were to constitute the Family Trust Expenses Account. The remaining 166.5 units were alloted to the relatives mentioned in the Schedule in the manner provided therein, the number of units allocated to each individual relative being specified there. Clause 6 of the Trust Deed creates a Reserve Fund comprising five equal units of the corpus of the Trust Fund. The trustees hold the Reserve Fund upon trust to apply the income or corpus thereof for any special, unusual unforeseen or emergency expenses for the benefit of the member of the settlors family specified in the Schedule. Additionally, if the income of the Family Trust Expenses Account is insufficient to meet the charges of collection of the income of the trust fund and the remuneration of the trustees and of the committee of management and the other costs, charges, expenses and outgoing relating to the trust, the trustees are enjoined to make good such deficit out of the income or corpus of the Reserve Fund and for that purpose, they may transfer to the Family Trust Expenses Account such sums as may be required. Then clause 7 was referred, which is in relation to 3.5 equal units of corpus of the Trust Fund granted to the Family Trust Expenses Account. For the assessment yearand the assessment years prior thereto, the incomes accruing to the Reserve Fund and the Family Trust Expenses Account were aggregated in a single assessment made on the trustee of the Nizams Family Trust. But, thereafter, the assessees appeals were allowed by the Appellate Assistant Commissioner against assessment for the years60 and the incomes of the two funds were separately assessed for the assessment years2. Thus, the assessee was described in the one case as the trustee of the Nizams Family Trust Reserve Fund and in the other as the trustee of the Nizams Family Trust Expenses Account. However, the Income Tax Officer being of the opinion that there was only one settlement under the Trust Deed, reopened the assessments for the assessment years62 under clause (a) of section 147 of the Income Tax Act, 1961 in order to assess the trustees on the combined income of the Reserve Fund and the Family Trust Expenses Account. He made separate original assessments for the assessment years6. The assessee appealed and the first appellate authority cancelled the assessment for all the years. The Revenue appealed to the Income Tax Appellate Tribunal, but the view taken by the first appellate authority was upheld by the tribunal and the appeals were dismissed. Then, the questions were referred for opinion of the High Court of Andhra Pradesh and they were answered in the negative. Hence, the Revenue appealed. That is how the primary question in the appeals before the Honble Supreme Court was whether the incomes arising from the Reserve Fund and the Family Trust Expenses Account can be assessed separately or not.45. Mr. Sridharans reliance on paragraphs 7, 8, 9 and 11 must be seen in this context. The tax was not identical to the one before us. It was a distinct tax legislation, namely, the Income Tax Act, 1961. The issue was, whether the incomes arising from the Reserve Fund and the Family Trust Expenses Account of the Nizams Family Trust can be assessed separately or must be aggregated in a single assessment. It is in this backdrop that the Trust Deed was referred and the Honble Supreme Court concluded that there may be separate funds created, but there was a notional division of the original trust fund. It is not, therefore, a case where separate trusts were created or separate heads were to constitute separate incomes. The objects of the two funds were also demarcated clearly. There is no intermingling of the funds. With all this, the settlor intended to create separate trust, is the conclusion of the High Court, which the Revenue assailed. However, bearing in mind the nature of the tax, the typical nature of the Deed of Trust, the appeals were dismissed. The court, in the context of the incomes, concluded that they cannot be aggregated in one single assessment, but must be assessed separately.46. Such is not the case before us. There is a single Deed of Trust. There may be separate schemes, but there was never any intent as is now sought to be culled out and to create separate Trust. This is not a case where separate Trusts were created and hence, the principle relied upon by Mr. Sridharan from several works on Law of Trust and to the effect that receipts from Axis Mutual Fund ETF alone have to be considered for there is formation of more than one trust by the Deed of Trust and that is permissible, has no application. This has no application here because the earlier principle and based on the case of Commissioner of Income Tax, Bombay City 1, Bombay vs. Manilal Dhanji, Bombay (1962) 44 ITR 876 ) is inapplicable. This is not a case where the settlor has created more trusts under a single Trust Deed. This is a clear case where the Deed of Trust permits floating one or more schemes. That is not equivalent to creation of separate Trusts. It is in these circumstances that the assessing officer, the first appellate authority and the tribunal all rightly concluded that theavailable under Rule 53 has to be reduced. It shall be accordingly in part or full in the event of any of the contingencies specified and to the extent specified in(6) of Rule 53. Pertinently, thehas not been disallowed in full. It is hold that in the case clearly specified of gross receipts of a dealer in any year and if from that, receipts on account of sale are less than 50% of the total receipts, then, insofar as the dealer, who is not a hotel or restaurant, theis permissible only on those purchases effected in that year where the corresponding goods are sold or resold within six months from the date of purchase. There is no creation of separate Trusts, but separate schemes under a single Trust Deed are floated.47. To our mind, therefore, none of the authorities were in any error nor their view can be termed as perverse while granting partial relief to the petitioner. We do not see how the view taken by the first appellate authority in the facts and circumstances peculiar to the petitioners case is perverse. We are of the view that the conclusion reached by the first appellate authority is imminently possible. It is evident from the same that the petitioner obtained registration under the MVAT Act. It invested in the gold and disposed it of, may be on behalf of the customers. However, it paid VAT on it and was held liable to pay interest if the payment of VAT is delayed. Hence, the first appellate authority has rightly concluded that the tax amount, together with interest is payable. He confirmed the demand to that extent. The tribunal also confirmed this view. It concurred with the assessing officer and the first appellate authority as both took a view on facts and on law, which is not perverse or vitiated by error of law apparent on the face of the record. In these circumstances, the disallowance of input tax credit under Rule 53(6)(b) was also confirmed and in our opinion, rightly. | 0 | 10,897 | 2,482 | ### 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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Trust. But, thereafter, the assessees appeals were allowed by the Appellate Assistant Commissioner against assessment for the years 1955-56 to 1959-60 and the incomes of the two funds were separately assessed for the assessment years 1960-61 and 1961-62. Thus, the assessee was described in the one case as the trustee of the Nizams Family Trust Reserve Fund and in the other as the trustee of the Nizams Family Trust Expenses Account. However, the Income Tax Officer being of the opinion that there was only one settlement under the Trust Deed, reopened the assessments for the assessment years 1960-61 and 1961-62 under clause (a) of section 147 of the Income Tax Act, 1961 in order to assess the trustees on the combined income of the Reserve Fund and the Family Trust Expenses Account. He made separate original assessments for the assessment years 1962-63 to 1965-66. The assessee appealed and the first appellate authority cancelled the assessment for all the years. The Revenue appealed to the Income Tax Appellate Tribunal, but the view taken by the first appellate authority was upheld by the tribunal and the appeals were dismissed. Then, the questions were referred for opinion of the High Court of Andhra Pradesh and they were answered in the negative. Hence, the Revenue appealed. That is how the primary question in the appeals before the Honble Supreme Court was whether the incomes arising from the Reserve Fund and the Family Trust Expenses Account can be assessed separately or not.45. Mr. Sridharans reliance on paragraphs 7, 8, 9 and 11 must be seen in this context. The tax was not identical to the one before us. It was a distinct tax legislation, namely, the Income Tax Act, 1961. The issue was, whether the incomes arising from the Reserve Fund and the Family Trust Expenses Account of the Nizams Family Trust can be assessed separately or must be aggregated in a single assessment. It is in this backdrop that the Trust Deed was referred and the Honble Supreme Court concluded that there may be separate funds created, but there was a notional division of the original trust fund. It is not, therefore, a case where separate trusts were created or separate heads were to constitute separate incomes. The objects of the two funds were also demarcated clearly. There is no intermingling of the funds. With all this, the settlor intended to create separate trust, is the conclusion of the High Court, which the Revenue assailed. However, bearing in mind the nature of the tax, the typical nature of the Deed of Trust, the appeals were dismissed. The court, in the context of the incomes, concluded that they cannot be aggregated in one single assessment, but must be assessed separately.46. Such is not the case before us. There is a single Deed of Trust. There may be separate schemes, but there was never any intent as is now sought to be culled out and to create separate Trust. This is not a case where separate Trusts were created and hence, the principle relied upon by Mr. Sridharan from several works on Law of Trust and to the effect that receipts from Axis Mutual Fund ETF alone have to be considered for there is formation of more than one trust by the Deed of Trust and that is permissible, has no application. This has no application here because the earlier principle and based on the case of Commissioner of Income Tax, Bombay City 1, Bombay vs. Manilal Dhanji, Bombay (1962) 44 ITR 876 ) is inapplicable. This is not a case where the settlor has created more trusts under a single Trust Deed. This is a clear case where the Deed of Trust permits floating one or more schemes. That is not equivalent to creation of separate Trusts. It is in these circumstances that the assessing officer, the first appellate authority and the tribunal all rightly concluded that the set-off available under Rule 53 has to be reduced. It shall be accordingly in part or full in the event of any of the contingencies specified and to the extent specified in sub-rule (6) of Rule 53. Pertinently, the set-off has not been disallowed in full. It is hold that in the case clearly specified of gross receipts of a dealer in any year and if from that, receipts on account of sale are less than 50% of the total receipts, then, insofar as the dealer, who is not a hotel or restaurant, the set-off is permissible only on those purchases effected in that year where the corresponding goods are sold or resold within six months from the date of purchase. There is no creation of separate Trusts, but separate schemes under a single Trust Deed are floated.47. To our mind, therefore, none of the authorities were in any error nor their view can be termed as perverse while granting partial relief to the petitioner. We do not see how the view taken by the first appellate authority in the facts and circumstances peculiar to the petitioners case is perverse. We are of the view that the conclusion reached by the first appellate authority is imminently possible. It is evident from the same that the petitioner obtained registration under the MVAT Act. It invested in the gold and disposed it of, may be on behalf of the customers. However, it paid VAT on it and was held liable to pay interest if the payment of VAT is delayed. Hence, the first appellate authority has rightly concluded that the tax amount, together with interest is payable. He confirmed the demand to that extent. The tribunal also confirmed this view. It concurred with the assessing officer and the first appellate authority as both took a view on facts and on law, which is not perverse or vitiated by error of law apparent on the face of the record. In these circumstances, the dis- allowance of input tax credit under Rule 53(6)(b) was also confirmed and in our opinion, rightly.
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and the Family Trust Expenses Account were aggregated in a single assessment made on the trustee of the Nizams Family Trust. But, thereafter, the assessees appeals were allowed by the Appellate Assistant Commissioner against assessment for the years60 and the incomes of the two funds were separately assessed for the assessment years2. Thus, the assessee was described in the one case as the trustee of the Nizams Family Trust Reserve Fund and in the other as the trustee of the Nizams Family Trust Expenses Account. However, the Income Tax Officer being of the opinion that there was only one settlement under the Trust Deed, reopened the assessments for the assessment years62 under clause (a) of section 147 of the Income Tax Act, 1961 in order to assess the trustees on the combined income of the Reserve Fund and the Family Trust Expenses Account. He made separate original assessments for the assessment years6. The assessee appealed and the first appellate authority cancelled the assessment for all the years. The Revenue appealed to the Income Tax Appellate Tribunal, but the view taken by the first appellate authority was upheld by the tribunal and the appeals were dismissed. Then, the questions were referred for opinion of the High Court of Andhra Pradesh and they were answered in the negative. Hence, the Revenue appealed. That is how the primary question in the appeals before the Honble Supreme Court was whether the incomes arising from the Reserve Fund and the Family Trust Expenses Account can be assessed separately or not.45. Mr. Sridharans reliance on paragraphs 7, 8, 9 and 11 must be seen in this context. The tax was not identical to the one before us. It was a distinct tax legislation, namely, the Income Tax Act, 1961. The issue was, whether the incomes arising from the Reserve Fund and the Family Trust Expenses Account of the Nizams Family Trust can be assessed separately or must be aggregated in a single assessment. It is in this backdrop that the Trust Deed was referred and the Honble Supreme Court concluded that there may be separate funds created, but there was a notional division of the original trust fund. It is not, therefore, a case where separate trusts were created or separate heads were to constitute separate incomes. The objects of the two funds were also demarcated clearly. There is no intermingling of the funds. With all this, the settlor intended to create separate trust, is the conclusion of the High Court, which the Revenue assailed. However, bearing in mind the nature of the tax, the typical nature of the Deed of Trust, the appeals were dismissed. The court, in the context of the incomes, concluded that they cannot be aggregated in one single assessment, but must be assessed separately.46. Such is not the case before us. There is a single Deed of Trust. There may be separate schemes, but there was never any intent as is now sought to be culled out and to create separate Trust. This is not a case where separate Trusts were created and hence, the principle relied upon by Mr. Sridharan from several works on Law of Trust and to the effect that receipts from Axis Mutual Fund ETF alone have to be considered for there is formation of more than one trust by the Deed of Trust and that is permissible, has no application. This has no application here because the earlier principle and based on the case of Commissioner of Income Tax, Bombay City 1, Bombay vs. Manilal Dhanji, Bombay (1962) 44 ITR 876 ) is inapplicable. This is not a case where the settlor has created more trusts under a single Trust Deed. This is a clear case where the Deed of Trust permits floating one or more schemes. That is not equivalent to creation of separate Trusts. It is in these circumstances that the assessing officer, the first appellate authority and the tribunal all rightly concluded that theavailable under Rule 53 has to be reduced. It shall be accordingly in part or full in the event of any of the contingencies specified and to the extent specified in(6) of Rule 53. Pertinently, thehas not been disallowed in full. It is hold that in the case clearly specified of gross receipts of a dealer in any year and if from that, receipts on account of sale are less than 50% of the total receipts, then, insofar as the dealer, who is not a hotel or restaurant, theis permissible only on those purchases effected in that year where the corresponding goods are sold or resold within six months from the date of purchase. There is no creation of separate Trusts, but separate schemes under a single Trust Deed are floated.47. To our mind, therefore, none of the authorities were in any error nor their view can be termed as perverse while granting partial relief to the petitioner. We do not see how the view taken by the first appellate authority in the facts and circumstances peculiar to the petitioners case is perverse. We are of the view that the conclusion reached by the first appellate authority is imminently possible. It is evident from the same that the petitioner obtained registration under the MVAT Act. It invested in the gold and disposed it of, may be on behalf of the customers. However, it paid VAT on it and was held liable to pay interest if the payment of VAT is delayed. Hence, the first appellate authority has rightly concluded that the tax amount, together with interest is payable. He confirmed the demand to that extent. The tribunal also confirmed this view. It concurred with the assessing officer and the first appellate authority as both took a view on facts and on law, which is not perverse or vitiated by error of law apparent on the face of the record. In these circumstances, the disallowance of input tax credit under Rule 53(6)(b) was also confirmed and in our opinion, rightly.
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Raja @ Rajinder Vs. State of Haryana | Section 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered.? 13. In State of Maharashtra v. Damu (2000) 6 SCC 269 ), while dealing with the fundamental facet of Section 27 of the Evidence Act, the Court observed that the basic idea embedded in the said provision is the doctrine of confession by subsequent events, which is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. It further stated that the information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information and, therefore, the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. 14. Thus, if an accused person gives a statement that relates to the discovery of a fact in consequence of information received from him is admissible. The rest part of the statement has to be treated as inadmissible. In view of the same, the recovery made at the instance of the accused-appellant has been rightly accepted by the trial Court as well as by the High Court, and we perceive no flaw in it. 15. Another circumstance which has been taken note of by the High Court is that the blood-stained clothes and the weapon, the knife, were sent to the Forensic Science Laboratory. The report obtained from the Laboratory clearly shows that blood stains were found on the clothes and the knife. True it is, there has been no matching of the blood group. However, that would not make a difference in the facts of the present case. The accused has not offered any explanation how the human blood was found on the clothes and the knife. In this regard, a passage from John Pandian v. State (2010) 14 SCC 129 )is worth reproducing: ?The discovery appears to be credible. It has been accepted by both the courts below and we find no reason to discard it. This is apart from the fact that this weapon was sent to the forensic science laboratory (FSL) and it has been found stained with human blood. Though the blood group could not be ascertained, as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon. He gave none. This discovery would very positively further the prosecution case.? In view of the aforesaid, there is no substantial reason not to accept the recovery of the weapon used in the crime. It is also apt to note here that Dr. N.K. Mittal, PW-1, has clearly opined that the injuries on the person of the deceased could be caused by the knife and the said opinion has gone unrebutted. 16. Another circumstance which needs to be noted is that Sukha, PW-7, a taxi driver, has deposed that on 18.1.2003 about 11.00 p.m. while he was going to Fatehabad for taking passengers, he saw a bullock cart parked in front of the house of the accused and certain persons were tying a bundle in a ?palli?. On query being made by him, the accused persons told him that they are carrying manure to the fields. Though, this witness has given an exaggerated version and stated differently about the time of arrest, yet his testimony to the effect that he had seen the accused with a bundle in ?palli? at a particular place cannot be disbelieved. The maxim ?falsus in uno, falsus in omnibus?, is not applicable in India. In Krishna Mochi v. State of Bihar (2002) 6 SCC 81 ), it has been held thus: ?The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance … nor has this maxim come to occupy the status of the rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded.? 17. In Yogendera v. State of Rajasthan ((2013) 12 SCC 399), it has been ruled that the Court must assess the extent to which the deposition of a witness can be relied upon. The court must make every attempt to separate falsehoods from the truth, and it must only be in exceptional circumstances, when it is entirely impossible to separate the grain from the chaff, for the same are so inextricably intertwined, that the entire evidence of such a witness must be discarded. Thus viewed, the version of PW-7 to the extent that has been stated hereinabove is totally acceptable and credible. 18. In a case based on circumstantial evidence, motive assumes great significance as its existence is an enlightening factor in a process of presumptive reasoning [See Kundula Bala Subrahmanyam and Anr. v. State of Andhra Pradesh ((1993) 2 SCC 684 )]. In the case at hand, it had come in the evidence that the accused-appellant was suspicious of the illicit relationship between the deceased and his wife. The accused has taken the plea that he was never married. It is noteworthy that the materials brought on record go a long way to show that after the death of his brother he had entered into the wedlock with his sister-in-law as per the tradition of the community, that is, ‘Kareva? marriage. The said facet of evidence has really not been assailed or shaken. Thus, it has been established that there was suspicion by the accused that the deceased was having relationship with his brother?s wife and that had aroused his anger. The said motive further strengthens the case of the prosecution. | 0[ds]7. As the factual matrix would show, the case of the prosecution entirely hinges on circumstantial evidence. When a case rests on circumstantial evidence, the Court has to be satisfied that the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence9. From the aforesaid it is clear as day that the Court is required to evaluate the circumstantial evidence to see that the chain of events have been established clearly and completely to rule out any reasonable likelihood of the innocence of the accused. Needless to say whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted10. In the instant case, the circumstances that have been established by the prosecution are that the deceased had accompanied the accused–appellant, being called by him, from his house in the early part of the evening on the date of occurrence. The mother of the deceased, Kalawati, PW-11, has deposed in that regard. Thereafter, from the material brought on record, it is clearly revealed that the appellant was seen at the tea stall with the deceased14. Thus, if an accused person gives a statement that relates to the discovery of a fact in consequence of information received from him is admissible. The rest part of the statement has to be treated as inadmissible. In view of the same, the recovery made at the instance of the accused-appellant has been rightly accepted by the trial Court as well as by the High Court, and we perceive no flaw in itIn the case at hand, it had come in the evidence that the accused-appellant was suspicious of the illicit relationship between the deceased and his wife. The accused has taken the plea that he was never married. It is noteworthy that the materials brought on record go a long way to show that after the death of his brother he had entered into the wedlock with his sister-in-law as per the tradition of the community, that is, ‘Kareva? marriage. The said facet of evidence has really not been assailed or shaken. Thus, it has been established that there was suspicion by the accused that the deceased was having relationship with his brother?s wife and that had aroused his anger. The said motive further strengthens the case of the prosecution. | 0 | 3,811 | 543 | ### 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:
Section 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered.? 13. In State of Maharashtra v. Damu (2000) 6 SCC 269 ), while dealing with the fundamental facet of Section 27 of the Evidence Act, the Court observed that the basic idea embedded in the said provision is the doctrine of confession by subsequent events, which is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. It further stated that the information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information and, therefore, the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. 14. Thus, if an accused person gives a statement that relates to the discovery of a fact in consequence of information received from him is admissible. The rest part of the statement has to be treated as inadmissible. In view of the same, the recovery made at the instance of the accused-appellant has been rightly accepted by the trial Court as well as by the High Court, and we perceive no flaw in it. 15. Another circumstance which has been taken note of by the High Court is that the blood-stained clothes and the weapon, the knife, were sent to the Forensic Science Laboratory. The report obtained from the Laboratory clearly shows that blood stains were found on the clothes and the knife. True it is, there has been no matching of the blood group. However, that would not make a difference in the facts of the present case. The accused has not offered any explanation how the human blood was found on the clothes and the knife. In this regard, a passage from John Pandian v. State (2010) 14 SCC 129 )is worth reproducing: ?The discovery appears to be credible. It has been accepted by both the courts below and we find no reason to discard it. This is apart from the fact that this weapon was sent to the forensic science laboratory (FSL) and it has been found stained with human blood. Though the blood group could not be ascertained, as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon. He gave none. This discovery would very positively further the prosecution case.? In view of the aforesaid, there is no substantial reason not to accept the recovery of the weapon used in the crime. It is also apt to note here that Dr. N.K. Mittal, PW-1, has clearly opined that the injuries on the person of the deceased could be caused by the knife and the said opinion has gone unrebutted. 16. Another circumstance which needs to be noted is that Sukha, PW-7, a taxi driver, has deposed that on 18.1.2003 about 11.00 p.m. while he was going to Fatehabad for taking passengers, he saw a bullock cart parked in front of the house of the accused and certain persons were tying a bundle in a ?palli?. On query being made by him, the accused persons told him that they are carrying manure to the fields. Though, this witness has given an exaggerated version and stated differently about the time of arrest, yet his testimony to the effect that he had seen the accused with a bundle in ?palli? at a particular place cannot be disbelieved. The maxim ?falsus in uno, falsus in omnibus?, is not applicable in India. In Krishna Mochi v. State of Bihar (2002) 6 SCC 81 ), it has been held thus: ?The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance … nor has this maxim come to occupy the status of the rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded.? 17. In Yogendera v. State of Rajasthan ((2013) 12 SCC 399), it has been ruled that the Court must assess the extent to which the deposition of a witness can be relied upon. The court must make every attempt to separate falsehoods from the truth, and it must only be in exceptional circumstances, when it is entirely impossible to separate the grain from the chaff, for the same are so inextricably intertwined, that the entire evidence of such a witness must be discarded. Thus viewed, the version of PW-7 to the extent that has been stated hereinabove is totally acceptable and credible. 18. In a case based on circumstantial evidence, motive assumes great significance as its existence is an enlightening factor in a process of presumptive reasoning [See Kundula Bala Subrahmanyam and Anr. v. State of Andhra Pradesh ((1993) 2 SCC 684 )]. In the case at hand, it had come in the evidence that the accused-appellant was suspicious of the illicit relationship between the deceased and his wife. The accused has taken the plea that he was never married. It is noteworthy that the materials brought on record go a long way to show that after the death of his brother he had entered into the wedlock with his sister-in-law as per the tradition of the community, that is, ‘Kareva? marriage. The said facet of evidence has really not been assailed or shaken. Thus, it has been established that there was suspicion by the accused that the deceased was having relationship with his brother?s wife and that had aroused his anger. The said motive further strengthens the case of the prosecution.
### Response:
0
### Explanation:
7. As the factual matrix would show, the case of the prosecution entirely hinges on circumstantial evidence. When a case rests on circumstantial evidence, the Court has to be satisfied that the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence9. From the aforesaid it is clear as day that the Court is required to evaluate the circumstantial evidence to see that the chain of events have been established clearly and completely to rule out any reasonable likelihood of the innocence of the accused. Needless to say whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted10. In the instant case, the circumstances that have been established by the prosecution are that the deceased had accompanied the accused–appellant, being called by him, from his house in the early part of the evening on the date of occurrence. The mother of the deceased, Kalawati, PW-11, has deposed in that regard. Thereafter, from the material brought on record, it is clearly revealed that the appellant was seen at the tea stall with the deceased14. Thus, if an accused person gives a statement that relates to the discovery of a fact in consequence of information received from him is admissible. The rest part of the statement has to be treated as inadmissible. In view of the same, the recovery made at the instance of the accused-appellant has been rightly accepted by the trial Court as well as by the High Court, and we perceive no flaw in itIn the case at hand, it had come in the evidence that the accused-appellant was suspicious of the illicit relationship between the deceased and his wife. The accused has taken the plea that he was never married. It is noteworthy that the materials brought on record go a long way to show that after the death of his brother he had entered into the wedlock with his sister-in-law as per the tradition of the community, that is, ‘Kareva? marriage. The said facet of evidence has really not been assailed or shaken. Thus, it has been established that there was suspicion by the accused that the deceased was having relationship with his brother?s wife and that had aroused his anger. The said motive further strengthens the case of the prosecution.
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State Of M.P. Vs. K.C.T. Drinks | of a sum in consideration of grant of any lease in lump sum in addition to any duty leviable under the Act on terms and conditions which are mentioned in the licence deed. Condition 8 of the licence provides that the licensee shall pay the full cost of excise supervisory staff posted at the premises of KCT Drinks, Mandideep, Distt. Raisen. 8. Similar provisions were considered by this Court and their validity is upheld in Government of Andhra Pradesh vs. M/s. Anabeshahi Wine and Distilleries Pvt. Ltd. (1988) 2 SCC 25 ) wherein this Court observed thus:- 5. The perusal of the aforesaid provisions of the Act and the Rules leaves no manner of doubt that it was open to the appellant to grant the exclusive privilege of manufacturing and selling wine etc. to the respondent only provided it was, apart from making any other payment, also willing to pay the salaries and allowances referred to in the aforesaid provisions which for the sake of convenience have been described as establishment charges, and which were sought to be recovered as such under the impugned notice of demand. The respondent-Company was not under any obligation to take the licence. It was open to it to have refrained from taking any licence under the Act and the Rules if it was not willing to pay the price as required by the government for the great of privilege to manufacture and sell intoxicants. The nature of the payment which a licensee such as the respondent is required to make to the State By reason of the State parting with the privilege in regard to manufacture sale etc. of intoxicants came up for consideration before a Constitution Bench of this Court in Har Shankar vs. Deputy Excise and Taxation Commissioner (1975) 3 SCR 254 ). It was held that the amounts charged to the licensees are neither in the nature of tax nor excise duty but constituted the price or consideration which the government charges to the licensees for parting with its privileges and granting them to the licensees... 6. The principles laid down in the aforementioned cases will, in our opinion, apply to the instant case also. The fact of the demand being with regard to establishment charges will make no difference. A predetermined amount equivalent to or even higher than the amount which is sought to be recovered by the appellant from the respondent calculated for the entire period of the licence could have been demanded in a lump sum as price for parting with the privilege and it could not have been challenged by the respondent in view of the principle enunciated by this Court in the aforesaid cases. Simply because the demand was spread over with a view to making it just and reasonable so as to represent the actual expenditure incurred by the government to maintain the requisite excise staff at the factory premises of the respondent as contemplated by the relevant provisions of the Act and the Rules, it would not become illegal and vulnerable. 9. In Shri Bileshwar Khand Udyog Khedut Sahakari Mandali Ltd. vs. State of Gujarat and Anr. (1992) 2 SCC 42 ) validity of demand under Section 58A of the Bombay Prohibition Act, 1949 for maintenance of excise staff for supervision of manufacture of industrial alcohol was assailed on the ground of lack of legislative competence of the State. In that case, the Court observed thus:- 4. According to learned counsel since the entire judgment of the High Court proceeded on privilege theory it cannot withstand the principle laid down in Synthetics and Chemicals Ltd. vs. State of U.P. (1990) 1 SCC 109 ). Levy as a fee under Entry 8 of List II of Seventh Schedule or excise duty under Entry 51 are different than cost of supervision charged under Section 58-A. The former has to stand the test of a levy being in accordance with law on power derived from one of the constitutional entries. Since Synthetics and Chemicals Case finally brought down the curtain in respect of industrial alcohol by taking it out of the purview of either Entry 8 or 51 of List II of Seventh Schedule the competency of the State to frame any legislation to levy any tax or duty is excluded. But by that a provision enacted by the State for supervision which is squarely covered under Entry 33 of the Concurrent List which deals with production, supply and distribution which includes regulation cannot be assailed. The bench in Synthetics and Chemicals case made it clear the even though the power to levy tax or duty on industrial alcohol vested in the Central Government the State was still left with power to lay down regulations to ensure that non-potable alcohol that is, industrial alcohol, was not diverted and misused as substitute for potable alcohol. This is enough to justify a provision like Section 58-A. In paragraph 88 of the decision it was observed that in respect of industrial alcohol the States were not authorised to impose the impost as they have purported to do in that case but that did not effect any imposition of fee where there were circumstances to establish that there was quid pro quo for the fee nor it will affect any regulatory measure. This completely demolishes the argument or behalf of the appellant. 10. The aforesaid decision was referred to and relied upon in M/s. Gujchem Distillery India Ltd. vs. State of Gujarat (1992) 2 SCC 399 ). 11. In view of the aforesaid settled legal position, the condition empowering the State Government to recover the actual cost of supervisory staff posted at the premises of respondent cannot be said to be in any way illegal or ultra vires as it constitutes the price or consideration which the Government charges to the licensee for parting with its privilege and granting licence. In this view of the matter, the impugned judgment and order passed by the High Court requires to be set aside. | 1[ds]7. In view of Sections 18 and 27, the State Government is entitled to accept payment of a sum in consideration of grant of any lease in lump sum in addition to any duty leviable under the Act on terms and conditions which are mentioned in the licence deed. Condition 8 of the licence provides that the licensee shall pay the full cost of excise supervisory staff posted at the premises of KCT Drinks, Mandideep, Distt. Raisen9. In Shri Bileshwar Khand Udyog Khedut Sahakari Mandali Ltd. vs. State of Gujarat and Anr. (1992) 2 SCC 42 ) validity of demand under Section 58A of the Bombay Prohibition Act, 1949 for maintenance of excise staff for supervision of manufacture of industrial alcohol was assailed on the ground of lack of legislative competence of the State10. The aforesaid decision was referred to and relied upon in M/s. Gujchem Distillery India Ltd. vs. State of Gujarat (1992) 2 SCC 399 )11. In view of the aforesaid settled legal position, the condition empowering the State Government to recover the actual cost of supervisory staff posted at the premises of respondent cannot be said to be in any way illegal or ultra vires as it constitutes the price or consideration which the Government charges to the licensee for parting with its privilege and granting licence. In this view of the matter, the impugned judgment and order passed by the High Court requires to be set aside. | 1 | 1,951 | 267 | ### 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:
of a sum in consideration of grant of any lease in lump sum in addition to any duty leviable under the Act on terms and conditions which are mentioned in the licence deed. Condition 8 of the licence provides that the licensee shall pay the full cost of excise supervisory staff posted at the premises of KCT Drinks, Mandideep, Distt. Raisen. 8. Similar provisions were considered by this Court and their validity is upheld in Government of Andhra Pradesh vs. M/s. Anabeshahi Wine and Distilleries Pvt. Ltd. (1988) 2 SCC 25 ) wherein this Court observed thus:- 5. The perusal of the aforesaid provisions of the Act and the Rules leaves no manner of doubt that it was open to the appellant to grant the exclusive privilege of manufacturing and selling wine etc. to the respondent only provided it was, apart from making any other payment, also willing to pay the salaries and allowances referred to in the aforesaid provisions which for the sake of convenience have been described as establishment charges, and which were sought to be recovered as such under the impugned notice of demand. The respondent-Company was not under any obligation to take the licence. It was open to it to have refrained from taking any licence under the Act and the Rules if it was not willing to pay the price as required by the government for the great of privilege to manufacture and sell intoxicants. The nature of the payment which a licensee such as the respondent is required to make to the State By reason of the State parting with the privilege in regard to manufacture sale etc. of intoxicants came up for consideration before a Constitution Bench of this Court in Har Shankar vs. Deputy Excise and Taxation Commissioner (1975) 3 SCR 254 ). It was held that the amounts charged to the licensees are neither in the nature of tax nor excise duty but constituted the price or consideration which the government charges to the licensees for parting with its privileges and granting them to the licensees... 6. The principles laid down in the aforementioned cases will, in our opinion, apply to the instant case also. The fact of the demand being with regard to establishment charges will make no difference. A predetermined amount equivalent to or even higher than the amount which is sought to be recovered by the appellant from the respondent calculated for the entire period of the licence could have been demanded in a lump sum as price for parting with the privilege and it could not have been challenged by the respondent in view of the principle enunciated by this Court in the aforesaid cases. Simply because the demand was spread over with a view to making it just and reasonable so as to represent the actual expenditure incurred by the government to maintain the requisite excise staff at the factory premises of the respondent as contemplated by the relevant provisions of the Act and the Rules, it would not become illegal and vulnerable. 9. In Shri Bileshwar Khand Udyog Khedut Sahakari Mandali Ltd. vs. State of Gujarat and Anr. (1992) 2 SCC 42 ) validity of demand under Section 58A of the Bombay Prohibition Act, 1949 for maintenance of excise staff for supervision of manufacture of industrial alcohol was assailed on the ground of lack of legislative competence of the State. In that case, the Court observed thus:- 4. According to learned counsel since the entire judgment of the High Court proceeded on privilege theory it cannot withstand the principle laid down in Synthetics and Chemicals Ltd. vs. State of U.P. (1990) 1 SCC 109 ). Levy as a fee under Entry 8 of List II of Seventh Schedule or excise duty under Entry 51 are different than cost of supervision charged under Section 58-A. The former has to stand the test of a levy being in accordance with law on power derived from one of the constitutional entries. Since Synthetics and Chemicals Case finally brought down the curtain in respect of industrial alcohol by taking it out of the purview of either Entry 8 or 51 of List II of Seventh Schedule the competency of the State to frame any legislation to levy any tax or duty is excluded. But by that a provision enacted by the State for supervision which is squarely covered under Entry 33 of the Concurrent List which deals with production, supply and distribution which includes regulation cannot be assailed. The bench in Synthetics and Chemicals case made it clear the even though the power to levy tax or duty on industrial alcohol vested in the Central Government the State was still left with power to lay down regulations to ensure that non-potable alcohol that is, industrial alcohol, was not diverted and misused as substitute for potable alcohol. This is enough to justify a provision like Section 58-A. In paragraph 88 of the decision it was observed that in respect of industrial alcohol the States were not authorised to impose the impost as they have purported to do in that case but that did not effect any imposition of fee where there were circumstances to establish that there was quid pro quo for the fee nor it will affect any regulatory measure. This completely demolishes the argument or behalf of the appellant. 10. The aforesaid decision was referred to and relied upon in M/s. Gujchem Distillery India Ltd. vs. State of Gujarat (1992) 2 SCC 399 ). 11. In view of the aforesaid settled legal position, the condition empowering the State Government to recover the actual cost of supervisory staff posted at the premises of respondent cannot be said to be in any way illegal or ultra vires as it constitutes the price or consideration which the Government charges to the licensee for parting with its privilege and granting licence. In this view of the matter, the impugned judgment and order passed by the High Court requires to be set aside.
### Response:
1
### Explanation:
7. In view of Sections 18 and 27, the State Government is entitled to accept payment of a sum in consideration of grant of any lease in lump sum in addition to any duty leviable under the Act on terms and conditions which are mentioned in the licence deed. Condition 8 of the licence provides that the licensee shall pay the full cost of excise supervisory staff posted at the premises of KCT Drinks, Mandideep, Distt. Raisen9. In Shri Bileshwar Khand Udyog Khedut Sahakari Mandali Ltd. vs. State of Gujarat and Anr. (1992) 2 SCC 42 ) validity of demand under Section 58A of the Bombay Prohibition Act, 1949 for maintenance of excise staff for supervision of manufacture of industrial alcohol was assailed on the ground of lack of legislative competence of the State10. The aforesaid decision was referred to and relied upon in M/s. Gujchem Distillery India Ltd. vs. State of Gujarat (1992) 2 SCC 399 )11. In view of the aforesaid settled legal position, the condition empowering the State Government to recover the actual cost of supervisory staff posted at the premises of respondent cannot be said to be in any way illegal or ultra vires as it constitutes the price or consideration which the Government charges to the licensee for parting with its privilege and granting licence. In this view of the matter, the impugned judgment and order passed by the High Court requires to be set aside.
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Maharashtra State Electricity Distribution Co. Ltd Vs. M/s. JSW Steel Limited & Ors | the generating station of a generating company or the open access for the purpose of carrying electricity from the captive generating plant to the destination of his use shall be subject to availability of the adequate transmission facility determined by the Central Transmission Utility or the State Transmission Utility, it cannot be said that for captive generation plant, the State Commissions permission is required. Right to open access to transmit/carry electricity to the captive user is granted by the Act, and is not subject to and does not require the Sate Commissions permission. The right is conditioned by availability of transmission facility, which aspect can be determined by the Central or State transmission utility. Only in case of dispute, the State Commission may adjudicate. 10. In light of the above observations and findings, the issue whether such captive users are subject to levy of additional surcharge leviable under sub-section (4) of Section 42 is required to be considered. 11. Sub-section (4) of Section 42 shall be applicable only in a case where the State Commission permits a consumer or class of consumers to receive supply of electricity from a person other than the distribution licensee of his area of supply and only such consumer shall be liable to pay additional surcharge on the charges of wheeling, as may be specified by the State Commission. Captive user requires no such permission, as he has statutory right. At this stage, it is required to be noted that as per the Scheme of the Act, there can be two classes of consumers, (i) the ordinary consumer or class of consumers who is supplied with electricity for his own use by a distribution licensee / licensee and; (ii) captive consumers, who are permitted to generate for their own use as per Section 9 of the Act, 2003. 12. The term consumer is defined in Section 2(15), which reads as under:- (15) consumer means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be; 13. Ordinarily, a consumer or class of consumers has to receive supply of electricity from the distribution licensee of his area of supply. However, with the permission of the State Commission such a consumer or class of consumers may receive supply of electricity from the person other than the distribution licensee of his area of supply, however, subject to payment of additional surcharge on the charges of wheeling as may be specified by the State Commission to meet the fixed cost of such distribution licensee arising out of his obligation to supply. There is a logic behind the levy of additional surcharge on the charges of wheeling in such a situation and/or eventuality, because the distribution licensee has already incurred the expenditure, entered into purchase agreements and has invested the money for supply of electricity to the consumers or class of consumers of the area of his supply for which the distribution license is issued. Therefore, if a consumer or class of consumers want to receive the supply of electricity from a person other than the distribution licensee of his area of supply, he has to compensate for the fixed cost and expenses of such distribution licensee arising out of his obligation to supply. Therefore, the levy of additional surcharge under sub-section (4) of Section 42 can be said to be justified and can be imposed and also can be said to be compensatory in nature. However, as observed hereinabove, sub-section (4) of Section 42 shall be applicable only in a case where the State Commission permits a consumer or class of consumers to receive supply of electricity from a person other than the person – distribution licensee of his area of supply. So far as captive consumers/captive users are concerned, no such permission of the State Commission is required and by operation of law namely Section 9 captive generation and distribution to captive users is permitted. Therefore, so far as the captive consumers / captive users are concerned, they are not liable to pay the additional surcharge under Section 42(4) of the Act, 2003. In the case of the captive consumers/captive users, they have also to incur the expenditure and/or invest the money for constructing, maintaining or operating a captive generating plant and dedicated transmission lines. Therefore, as such the Appellate Tribunal has rightly held that so far as the captive consumers/captive users are concerned, the additional surcharge under sub-section (4) of Section 42 of the Act, 2003 shall not be leviable. 14. Even otherwise, it is required to be noted that the consumers defined under Section 2(15) and the captive consumers are different and distinct and they form a separate class by themselves. So far as captive consumers are concerned, they incur a huge expenditure/invest a huge amount for the purpose of construction, maintenance or operation of a captive generating plant and dedicated transmission lines. However, so far as the consumers defined under Section 2(15) are concerned, they as such are not to incur any expenditure and/or invest any amount at all. Therefore, if the appellant is held to be right in submitting that even the captive consumers, who are a separate class by themselves are subjected to levy of additional surcharge under Section 42(4), in that case, it will be discriminatory and it can be said that unequals are treated equally. Therefore, it is to be held that such captive consumers/captive users, who form a separate class other than the consumers defined under Section 2(15) of the Act, 2003, shall not be subjected to and/or liable to pay additional surcharge leviable under Section 42(4) of the Act, 2003. | 0[ds]9. On a fair reading of Section 9, it can be seen that captive generation is permitted under sub-section (1) of Section 9. As per subsection (2), every person, who has constructed a captive generating plant and maintains and operates such plant, shall have the right to open access for the purposes of carrying electricity from his captive generating plant to the destination of his use, but of-course subject to availability of adequate transmission facility determined by the Central Transmission Utility or the State Transmission Utility, as the case may be. So, the captive generation / captive use is statutorily provided / available and for which a permission of the State Commission is not required. The submission on behalf of the appellant that the captive generation under Section 9 is subject to the regulations as per first proviso to sub-section (1) of Section 9 and that even open access for the purpose of carrying electricity from his captive generating plant to the destination of his use shall be subject to availability of the adequate transmission facility determined by the Central Transmission Utility or the State Transmission Utility, as the case may be, sub-section (4) of Section 42 shall be applicable and such captive users are liable to pay the additional surcharge leviable under sub-section (4) of section 42, has no substance and has to be rejected outright. Construction and/or maintenance and operation of a captive generating plant and dedicated transmission lines is not subjected to any permission by the State Commission. As provided under Section 9 of the Act, 2003, any person may construct, maintain or operate a captive generating plant and dedicated transmission lines. Merely because the supply of electricity from the captive generating plant through the grid shall be regulated in the same manner as the generating station of a generating company or the open access for the purpose of carrying electricity from the captive generating plant to the destination of his use shall be subject to availability of the adequate transmission facility determined by the Central Transmission Utility or the State Transmission Utility, it cannot be said that for captive generation plant, the State Commissions permission is required. Right to open access to transmit/carry electricity to the captive user is granted by the Act, and is not subject to and does not require the Sate Commissions permission. The right is conditioned by availability of transmission facility, which aspect can be determined by the Central or State transmission utility. Only in case of dispute, the State Commission may adjudicate.13. Ordinarily, a consumer or class of consumers has to receive supply of electricity from the distribution licensee of his area of supply. However, with the permission of the State Commission such a consumer or class of consumers may receive supply of electricity from the person other than the distribution licensee of his area of supply, however, subject to payment of additional surcharge on the charges of wheeling as may be specified by the State Commission to meet the fixed cost of such distribution licensee arising out of his obligation to supply. There is a logic behind the levy of additional surcharge on the charges of wheeling in such a situation and/or eventuality, because the distribution licensee has already incurred the expenditure, entered into purchase agreements and has invested the money for supply of electricity to the consumers or class of consumers of the area of his supply for which the distribution license is issued. Therefore, if a consumer or class of consumers want to receive the supply of electricity from a person other than the distribution licensee of his area of supply, he has to compensate for the fixed cost and expenses of such distribution licensee arising out of his obligation to supply. Therefore, the levy of additional surcharge under sub-section (4) of Section 42 can be said to be justified and can be imposed and also can be said to be compensatory in nature. However, as observed hereinabove, sub-section (4) of Section 42 shall be applicable only in a case where the State Commission permits a consumer or class of consumers to receive supply of electricity from a person other than the person – distribution licensee of his area of supply. So far as captive consumers/captive users are concerned, no such permission of the State Commission is required and by operation of law namely Section 9 captive generation and distribution to captive users is permitted. Therefore, so far as the captive consumers / captive users are concerned, they are not liable to pay the additional surcharge under Section 42(4) of the Act, 2003. In the case of the captive consumers/captive users, they have also to incur the expenditure and/or invest the money for constructing, maintaining or operating a captive generating plant and dedicated transmission lines. Therefore, as such the Appellate Tribunal has rightly held that so far as the captive consumers/captive users are concerned, the additional surcharge under sub-section (4) of Section 42 of the Act, 2003 shall not be leviable.14. Even otherwise, it is required to be noted that the consumers defined under Section 2(15) and the captive consumers are different and distinct and they form a separate class by themselves. So far as captive consumers are concerned, they incur a huge expenditure/invest a huge amount for the purpose of construction, maintenance or operation of a captive generating plant and dedicated transmission lines. However, so far as the consumers defined under Section 2(15) are concerned, they as such are not to incur any expenditure and/or invest any amount at all. Therefore, if the appellant is held to be right in submitting that even the captive consumers, who are a separate class by themselves are subjected to levy of additional surcharge under Section 42(4), in that case, it will be discriminatory and it can be said that unequals are treated equally. Therefore, it is to be held that such captive consumers/captive users, who form a separate class other than the consumers defined under Section 2(15) of the Act, 2003, shall not be subjected to and/or liable to pay additional surcharge leviable under Section 42(4) of the Act, 2003. | 0 | 2,996 | 1,137 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
the generating station of a generating company or the open access for the purpose of carrying electricity from the captive generating plant to the destination of his use shall be subject to availability of the adequate transmission facility determined by the Central Transmission Utility or the State Transmission Utility, it cannot be said that for captive generation plant, the State Commissions permission is required. Right to open access to transmit/carry electricity to the captive user is granted by the Act, and is not subject to and does not require the Sate Commissions permission. The right is conditioned by availability of transmission facility, which aspect can be determined by the Central or State transmission utility. Only in case of dispute, the State Commission may adjudicate. 10. In light of the above observations and findings, the issue whether such captive users are subject to levy of additional surcharge leviable under sub-section (4) of Section 42 is required to be considered. 11. Sub-section (4) of Section 42 shall be applicable only in a case where the State Commission permits a consumer or class of consumers to receive supply of electricity from a person other than the distribution licensee of his area of supply and only such consumer shall be liable to pay additional surcharge on the charges of wheeling, as may be specified by the State Commission. Captive user requires no such permission, as he has statutory right. At this stage, it is required to be noted that as per the Scheme of the Act, there can be two classes of consumers, (i) the ordinary consumer or class of consumers who is supplied with electricity for his own use by a distribution licensee / licensee and; (ii) captive consumers, who are permitted to generate for their own use as per Section 9 of the Act, 2003. 12. The term consumer is defined in Section 2(15), which reads as under:- (15) consumer means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be; 13. Ordinarily, a consumer or class of consumers has to receive supply of electricity from the distribution licensee of his area of supply. However, with the permission of the State Commission such a consumer or class of consumers may receive supply of electricity from the person other than the distribution licensee of his area of supply, however, subject to payment of additional surcharge on the charges of wheeling as may be specified by the State Commission to meet the fixed cost of such distribution licensee arising out of his obligation to supply. There is a logic behind the levy of additional surcharge on the charges of wheeling in such a situation and/or eventuality, because the distribution licensee has already incurred the expenditure, entered into purchase agreements and has invested the money for supply of electricity to the consumers or class of consumers of the area of his supply for which the distribution license is issued. Therefore, if a consumer or class of consumers want to receive the supply of electricity from a person other than the distribution licensee of his area of supply, he has to compensate for the fixed cost and expenses of such distribution licensee arising out of his obligation to supply. Therefore, the levy of additional surcharge under sub-section (4) of Section 42 can be said to be justified and can be imposed and also can be said to be compensatory in nature. However, as observed hereinabove, sub-section (4) of Section 42 shall be applicable only in a case where the State Commission permits a consumer or class of consumers to receive supply of electricity from a person other than the person – distribution licensee of his area of supply. So far as captive consumers/captive users are concerned, no such permission of the State Commission is required and by operation of law namely Section 9 captive generation and distribution to captive users is permitted. Therefore, so far as the captive consumers / captive users are concerned, they are not liable to pay the additional surcharge under Section 42(4) of the Act, 2003. In the case of the captive consumers/captive users, they have also to incur the expenditure and/or invest the money for constructing, maintaining or operating a captive generating plant and dedicated transmission lines. Therefore, as such the Appellate Tribunal has rightly held that so far as the captive consumers/captive users are concerned, the additional surcharge under sub-section (4) of Section 42 of the Act, 2003 shall not be leviable. 14. Even otherwise, it is required to be noted that the consumers defined under Section 2(15) and the captive consumers are different and distinct and they form a separate class by themselves. So far as captive consumers are concerned, they incur a huge expenditure/invest a huge amount for the purpose of construction, maintenance or operation of a captive generating plant and dedicated transmission lines. However, so far as the consumers defined under Section 2(15) are concerned, they as such are not to incur any expenditure and/or invest any amount at all. Therefore, if the appellant is held to be right in submitting that even the captive consumers, who are a separate class by themselves are subjected to levy of additional surcharge under Section 42(4), in that case, it will be discriminatory and it can be said that unequals are treated equally. Therefore, it is to be held that such captive consumers/captive users, who form a separate class other than the consumers defined under Section 2(15) of the Act, 2003, shall not be subjected to and/or liable to pay additional surcharge leviable under Section 42(4) of the Act, 2003.
### Response:
0
### Explanation:
of Section 9. As per subsection (2), every person, who has constructed a captive generating plant and maintains and operates such plant, shall have the right to open access for the purposes of carrying electricity from his captive generating plant to the destination of his use, but of-course subject to availability of adequate transmission facility determined by the Central Transmission Utility or the State Transmission Utility, as the case may be. So, the captive generation / captive use is statutorily provided / available and for which a permission of the State Commission is not required. The submission on behalf of the appellant that the captive generation under Section 9 is subject to the regulations as per first proviso to sub-section (1) of Section 9 and that even open access for the purpose of carrying electricity from his captive generating plant to the destination of his use shall be subject to availability of the adequate transmission facility determined by the Central Transmission Utility or the State Transmission Utility, as the case may be, sub-section (4) of Section 42 shall be applicable and such captive users are liable to pay the additional surcharge leviable under sub-section (4) of section 42, has no substance and has to be rejected outright. Construction and/or maintenance and operation of a captive generating plant and dedicated transmission lines is not subjected to any permission by the State Commission. As provided under Section 9 of the Act, 2003, any person may construct, maintain or operate a captive generating plant and dedicated transmission lines. Merely because the supply of electricity from the captive generating plant through the grid shall be regulated in the same manner as the generating station of a generating company or the open access for the purpose of carrying electricity from the captive generating plant to the destination of his use shall be subject to availability of the adequate transmission facility determined by the Central Transmission Utility or the State Transmission Utility, it cannot be said that for captive generation plant, the State Commissions permission is required. Right to open access to transmit/carry electricity to the captive user is granted by the Act, and is not subject to and does not require the Sate Commissions permission. The right is conditioned by availability of transmission facility, which aspect can be determined by the Central or State transmission utility. Only in case of dispute, the State Commission may adjudicate.13. Ordinarily, a consumer or class of consumers has to receive supply of electricity from the distribution licensee of his area of supply. However, with the permission of the State Commission such a consumer or class of consumers may receive supply of electricity from the person other than the distribution licensee of his area of supply, however, subject to payment of additional surcharge on the charges of wheeling as may be specified by the State Commission to meet the fixed cost of such distribution licensee arising out of his obligation to supply. There is a logic behind the levy of additional surcharge on the charges of wheeling in such a situation and/or eventuality, because the distribution licensee has already incurred the expenditure, entered into purchase agreements and has invested the money for supply of electricity to the consumers or class of consumers of the area of his supply for which the distribution license is issued. Therefore, if a consumer or class of consumers want to receive the supply of electricity from a person other than the distribution licensee of his area of supply, he has to compensate for the fixed cost and expenses of such distribution licensee arising out of his obligation to supply. Therefore, the levy of additional surcharge under sub-section (4) of Section 42 can be said to be justified and can be imposed and also can be said to be compensatory in nature. However, as observed hereinabove, sub-section (4) of Section 42 shall be applicable only in a case where the State Commission permits a consumer or class of consumers to receive supply of electricity from a person other than the person – distribution licensee of his area of supply. So far as captive consumers/captive users are concerned, no such permission of the State Commission is required and by operation of law namely Section 9 captive generation and distribution to captive users is permitted. Therefore, so far as the captive consumers / captive users are concerned, they are not liable to pay the additional surcharge under Section 42(4) of the Act, 2003. In the case of the captive consumers/captive users, they have also to incur the expenditure and/or invest the money for constructing, maintaining or operating a captive generating plant and dedicated transmission lines. Therefore, as such the Appellate Tribunal has rightly held that so far as the captive consumers/captive users are concerned, the additional surcharge under sub-section (4) of Section 42 of the Act, 2003 shall not be leviable.14. Even otherwise, it is required to be noted that the consumers defined under Section 2(15) and the captive consumers are different and distinct and they form a separate class by themselves. So far as captive consumers are concerned, they incur a huge expenditure/invest a huge amount for the purpose of construction, maintenance or operation of a captive generating plant and dedicated transmission lines. However, so far as the consumers defined under Section 2(15) are concerned, they as such are not to incur any expenditure and/or invest any amount at all. Therefore, if the appellant is held to be right in submitting that even the captive consumers, who are a separate class by themselves are subjected to levy of additional surcharge under Section 42(4), in that case, it will be discriminatory and it can be said that unequals are treated equally. Therefore, it is to be held that such captive consumers/captive users, who form a separate class other than the consumers defined under Section 2(15) of the Act, 2003, shall not be subjected to and/or liable to pay additional surcharge leviable under Section 42(4) of the Act, 2003.
|
Somnath Barman Vs. Dr. S. P. Raju & Anr | arrears till 1939. The Nazul due under Exhts. P-2 and P-3 comes to Rs. 41/- and odd per year as seen from Exh. P-6.7. Exihibit P-5 is a letter dated 11-12-1937 received by the plaintiff from Mr J. D. M. Dean (P. W. 2), First Divisional Engineer, Hyderabad City. It relates to the construction of a road from Museerabad to Bashir Bagh. It states that under the Firman dated 29th Shaban 56 Hijri, H. E. H. The Nizam was pleased to accord sanction to the acquisition of 20 per cent of the land without any compensation for the construction of road, from the owners of the land and that for the excess, land required, compensation will be paid. That letter further mentions that total area of the land belonging to the plaintiff was 7851 sq. yds. out of which 3112 sq. yds. were required for the construction of the road; out of that 1563 sq. yds. being the 20 per cent of the entire area was to be taken without any compensation and the value of the remaining 549 sq. yds. will be paid to the plaintiff. That letter further informed the plaintiff that the value of the additional area which might finally be determined after the marking may be obtained from the department. It is established that road from Musheerabad to Bashir Bagh was laid not only across the plot covered under P. 3 but also across the site purchased under Ex.P-2 in which the suit land is situate. That was obvious because if the road did not touch any portion of Exh. P-2, the entire area of the land belonging to plaintiff would have been only 5114 sq. yds. and not 7815 sq. yds. as mentioned in Exh. P-5. It also establishes that the plaintiff was recognised by the City Improvement Board as the person entitled to compensation in respect of that land. Evidence further discloses that the plaintiff was paid compensation in respect of the land taken from him in excess of 20 per cent referred to earlier. The oral evidence adduced in the case coupled with Exhs. P-2, P-4 and P-5 satisfactorily establishes the fact that the plaintiff was in possession of the suit property till about 1945.8. In addition to the evidence referred to earlier, the High Court has also relied on two other documents namely Exhs. D-8 and D-9, but those documents were produced as additional evidence in the High Court. Their connection with the suit property is not satisfactorily established. Therefore we have excluded them from consideration. If we bear in mind the fact that the question for decision is whether the plaintiff or the 2nd defendant was in possession of the suit property between the years 1930 to 1945, there is hardly any doubt that the preponderance of evidence is in favour of the plaintiffs case. As seen earlier, the defendants have not produced any reliable evidence to support their case. Hence we agree with the High Court that the plaintiff has succeeded in establishing that he was in possession of the suit property prior to 1945.9. It was next contended on behalf of the appellant that in a suit for possession brought on the basis of title, the plaintiff cannot succeed unless he proves his title to the suit property as well as its possession within 12 years. According to the appellant, except in a suit under Section 9 of the Specific Relief Act, the plaintiff for succeeding in the suit, has to prove both existing title to the suit property and its possession within 12 years. We are unable to accept this contention as correct. In our opinion the possession of the plaintiff prior to 1945 is a good title against all but the true owner. The defendants who are mere trespassers cannot defeat the plaintiffs lawful possession by ousting him from the suit property. Possessory title is a good title as against everybody other than the lawful owner. In Ismail Ariff v. Mahomed Ghouse, (1893) 20 Ind App 99 (PC), the Judicial Committee came to the conclusion that a person having possessory title can get a declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession. Therein it was observed that the possession of the plaintiff was a sufficient evidence of title as owner against the defendant.10. In Narayana Row v. Dharmachar, (1903) ILR 26 Mad 514 a bench of the Madras High Court consisting of Bhashyam Ayyangar and Moore, JJ., held that possession is, under the Indian, as under the English law, good title against all but the true owner.Section 9 of the Specific Relief Act is in no way inconsistent with the position that as against a wrongdoer, prior possession of the plaintiff, in an action of ejectment, is sufficient title, even if the suit be brought more than six months after the act of dispossession complained of and that the wrongdoer cannot successfully resist the suit by showing that the title and right to possession are in a third person.The same view was taken by the Bombay High Court in Krishnarao Yashwant v. Vasudev Appaji Ghotikar, (1884) ILR 8 Bom 371. That was also the view taken by the Allahabad High Court - See Umrao Singh v. Ramji Das, ILR 36 All 51 = (AIR 1914 All 54 (2)). Wali Ahmed Khan v. Ajudhia Kundu, (1891) ILR 13 All 537. In Subodh Gopal Bose v. Province of Bihar, AIR 1950 Pat 222 the Patna High Court adhered to the view taken by the Madras, Bombay and Allahabad High Courts. The contrary view taken by the Calcutta High Court in Debi Churn Boldo v. Issur Chunder Manjee, (1883) ILR 9 Cal 39; Ertaza Hossein v. Bany Mistry, (1883) ILR 9 Cal 130, Purmeshur Chowdhry v. Birjo Lall Chowdhry, (1890) ILR 17 Cal 256 and Nisa Chand Gaita v. Kanchiram Bagani, (1899) ILR 26 Cal 579, in our opinion does not lay down the law correctly. | 0[ds]The suit from which this appeal arises was initially instituted on the original side of the High Court of Hyderabad in the year 1949. Therefor to establish his claim of title by adverse possession the 1st defendant must primarily depend on the fact that the second defendant was in possession of the suit property for a period of over nine years before he sold the same to him. Though the second defendant filed a written statement supporting the case of the 1st defendant and though he was present at the time of hearing on several occasions, he was not examined as a witness in this case to support the plea of adverse possession put forward by the defendants. No explanation is forthcoming for his non-examination. This circumstance goes a long way to discredit the defendants plea of adverse possession. The 1st defendants evidence as regards adverse possession is of very little significance as his knowledge of the suit property prior to the date he purchased the same is very little. The only other evidence relied on in support of the plea of adverse possession is that of D. W. 2, Shambhu Prashad who claims to have taken the suit property on lease from the second defendant. The lease deed said to have been executed by him is marked as Exh. D/1. It is not explained how the Ist defendant came into possession of Exh. D/1. Though the suit was filed as far back as 1949, Exh. D/1 was produced into Court for the first time in the year 1960. No explanation has been given for this inordinate delay in producing Exh. D/1, (an unregistered document) in Court. According to D. W. 2, the Ist defendant knew about this document as far back as 1950. Under these circumstances, the High Court was fully justified in rejecting the testimony of D. W. 2 and not relying on Exh. D/1. The other evidence adduced by the Ist defendant relating to the plea of adverse possession was not commended for our acceptance. Therefore we need not consider the same. Hence we agree with the High Court that the defendants have failed to establish their plea of adversewe bear in mind the fact that the question for decision is whether the plaintiff or the 2nd defendant was in possession of the suit property between the years 1930 to 1945, there is hardly any doubt that the preponderance of evidence is in favour of the plaintiffs case. As seen earlier, the defendants have not produced any reliable evidence to support their case. Hence we agree with the High Court that the plaintiff has succeeded in establishing that he was in possession of the suit property prior toare unable to accept this contention as correct. In our opinion the possession of the plaintiff prior to 1945 is a good title against all but the true owner. The defendants who are mere trespassers cannot defeat the plaintiffs lawful possession by ousting him from the suit property. Possessory title is a good title as against everybody other than the lawful owner. In Ismail Ariff v. Mahomed Ghouse, (1893) 20 Ind App 99 (PC), the Judicial Committee came to the conclusion that a person having possessory title can get a declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession. Therein it was observed that the possession of the plaintiff was a sufficient evidence of title as owner against the defendant.10. In Narayana Row v. Dharmachar, (1903) ILR 26 Mad 514 a bench of the Madras High Court consisting of Bhashyam Ayyangar and Moore, JJ., held that possession is, under the Indian, as under the English law, good title against all but the true owner.Section 9 of the Specific Relief Act is in no way inconsistent with the position that as against a wrongdoer, prior possession of the plaintiff, in an action of ejectment, is sufficient title, even if the suit be brought more than six months after the act of dispossession complained of and that the wrongdoer cannot successfully resist the suit by showing that the title and right to possession are in a third person.The same view was taken by the Bombay High Court in Krishnarao Yashwant v. Vasudev Appaji Ghotikar, (1884) ILR 8 Bom 371. That was also the view taken by the Allahabad High Court - See Umrao Singh v. Ramji Das, ILR 36 All 51 = (AIR 1914 All 54 (2)). Wali Ahmed Khan v. Ajudhia Kundu, (1891) ILR 13 All 537. In Subodh Gopal Bose v. Province of Bihar, AIR 1950 Pat 222 the Patna High Court adhered to the view taken by the Madras, Bombay and Allahabad High Courts. The contrary view taken by the Calcutta High Court in Debi Churn Boldo v. Issur Chunder Manjee, (1883) ILR 9 Cal 39; Ertaza Hossein v. Bany Mistry, (1883) ILR 9 Cal 130, Purmeshur Chowdhry v. Birjo Lall Chowdhry, (1890) ILR 17 Cal 256 and Nisa Chand Gaita v. Kanchiram Bagani, (1899) ILR 26 Cal 579, in our opinion does not lay down the law correctly. | 0 | 2,540 | 948 | ### 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:
arrears till 1939. The Nazul due under Exhts. P-2 and P-3 comes to Rs. 41/- and odd per year as seen from Exh. P-6.7. Exihibit P-5 is a letter dated 11-12-1937 received by the plaintiff from Mr J. D. M. Dean (P. W. 2), First Divisional Engineer, Hyderabad City. It relates to the construction of a road from Museerabad to Bashir Bagh. It states that under the Firman dated 29th Shaban 56 Hijri, H. E. H. The Nizam was pleased to accord sanction to the acquisition of 20 per cent of the land without any compensation for the construction of road, from the owners of the land and that for the excess, land required, compensation will be paid. That letter further mentions that total area of the land belonging to the plaintiff was 7851 sq. yds. out of which 3112 sq. yds. were required for the construction of the road; out of that 1563 sq. yds. being the 20 per cent of the entire area was to be taken without any compensation and the value of the remaining 549 sq. yds. will be paid to the plaintiff. That letter further informed the plaintiff that the value of the additional area which might finally be determined after the marking may be obtained from the department. It is established that road from Musheerabad to Bashir Bagh was laid not only across the plot covered under P. 3 but also across the site purchased under Ex.P-2 in which the suit land is situate. That was obvious because if the road did not touch any portion of Exh. P-2, the entire area of the land belonging to plaintiff would have been only 5114 sq. yds. and not 7815 sq. yds. as mentioned in Exh. P-5. It also establishes that the plaintiff was recognised by the City Improvement Board as the person entitled to compensation in respect of that land. Evidence further discloses that the plaintiff was paid compensation in respect of the land taken from him in excess of 20 per cent referred to earlier. The oral evidence adduced in the case coupled with Exhs. P-2, P-4 and P-5 satisfactorily establishes the fact that the plaintiff was in possession of the suit property till about 1945.8. In addition to the evidence referred to earlier, the High Court has also relied on two other documents namely Exhs. D-8 and D-9, but those documents were produced as additional evidence in the High Court. Their connection with the suit property is not satisfactorily established. Therefore we have excluded them from consideration. If we bear in mind the fact that the question for decision is whether the plaintiff or the 2nd defendant was in possession of the suit property between the years 1930 to 1945, there is hardly any doubt that the preponderance of evidence is in favour of the plaintiffs case. As seen earlier, the defendants have not produced any reliable evidence to support their case. Hence we agree with the High Court that the plaintiff has succeeded in establishing that he was in possession of the suit property prior to 1945.9. It was next contended on behalf of the appellant that in a suit for possession brought on the basis of title, the plaintiff cannot succeed unless he proves his title to the suit property as well as its possession within 12 years. According to the appellant, except in a suit under Section 9 of the Specific Relief Act, the plaintiff for succeeding in the suit, has to prove both existing title to the suit property and its possession within 12 years. We are unable to accept this contention as correct. In our opinion the possession of the plaintiff prior to 1945 is a good title against all but the true owner. The defendants who are mere trespassers cannot defeat the plaintiffs lawful possession by ousting him from the suit property. Possessory title is a good title as against everybody other than the lawful owner. In Ismail Ariff v. Mahomed Ghouse, (1893) 20 Ind App 99 (PC), the Judicial Committee came to the conclusion that a person having possessory title can get a declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession. Therein it was observed that the possession of the plaintiff was a sufficient evidence of title as owner against the defendant.10. In Narayana Row v. Dharmachar, (1903) ILR 26 Mad 514 a bench of the Madras High Court consisting of Bhashyam Ayyangar and Moore, JJ., held that possession is, under the Indian, as under the English law, good title against all but the true owner.Section 9 of the Specific Relief Act is in no way inconsistent with the position that as against a wrongdoer, prior possession of the plaintiff, in an action of ejectment, is sufficient title, even if the suit be brought more than six months after the act of dispossession complained of and that the wrongdoer cannot successfully resist the suit by showing that the title and right to possession are in a third person.The same view was taken by the Bombay High Court in Krishnarao Yashwant v. Vasudev Appaji Ghotikar, (1884) ILR 8 Bom 371. That was also the view taken by the Allahabad High Court - See Umrao Singh v. Ramji Das, ILR 36 All 51 = (AIR 1914 All 54 (2)). Wali Ahmed Khan v. Ajudhia Kundu, (1891) ILR 13 All 537. In Subodh Gopal Bose v. Province of Bihar, AIR 1950 Pat 222 the Patna High Court adhered to the view taken by the Madras, Bombay and Allahabad High Courts. The contrary view taken by the Calcutta High Court in Debi Churn Boldo v. Issur Chunder Manjee, (1883) ILR 9 Cal 39; Ertaza Hossein v. Bany Mistry, (1883) ILR 9 Cal 130, Purmeshur Chowdhry v. Birjo Lall Chowdhry, (1890) ILR 17 Cal 256 and Nisa Chand Gaita v. Kanchiram Bagani, (1899) ILR 26 Cal 579, in our opinion does not lay down the law correctly.
### Response:
0
### Explanation:
The suit from which this appeal arises was initially instituted on the original side of the High Court of Hyderabad in the year 1949. Therefor to establish his claim of title by adverse possession the 1st defendant must primarily depend on the fact that the second defendant was in possession of the suit property for a period of over nine years before he sold the same to him. Though the second defendant filed a written statement supporting the case of the 1st defendant and though he was present at the time of hearing on several occasions, he was not examined as a witness in this case to support the plea of adverse possession put forward by the defendants. No explanation is forthcoming for his non-examination. This circumstance goes a long way to discredit the defendants plea of adverse possession. The 1st defendants evidence as regards adverse possession is of very little significance as his knowledge of the suit property prior to the date he purchased the same is very little. The only other evidence relied on in support of the plea of adverse possession is that of D. W. 2, Shambhu Prashad who claims to have taken the suit property on lease from the second defendant. The lease deed said to have been executed by him is marked as Exh. D/1. It is not explained how the Ist defendant came into possession of Exh. D/1. Though the suit was filed as far back as 1949, Exh. D/1 was produced into Court for the first time in the year 1960. No explanation has been given for this inordinate delay in producing Exh. D/1, (an unregistered document) in Court. According to D. W. 2, the Ist defendant knew about this document as far back as 1950. Under these circumstances, the High Court was fully justified in rejecting the testimony of D. W. 2 and not relying on Exh. D/1. The other evidence adduced by the Ist defendant relating to the plea of adverse possession was not commended for our acceptance. Therefore we need not consider the same. Hence we agree with the High Court that the defendants have failed to establish their plea of adversewe bear in mind the fact that the question for decision is whether the plaintiff or the 2nd defendant was in possession of the suit property between the years 1930 to 1945, there is hardly any doubt that the preponderance of evidence is in favour of the plaintiffs case. As seen earlier, the defendants have not produced any reliable evidence to support their case. Hence we agree with the High Court that the plaintiff has succeeded in establishing that he was in possession of the suit property prior toare unable to accept this contention as correct. In our opinion the possession of the plaintiff prior to 1945 is a good title against all but the true owner. The defendants who are mere trespassers cannot defeat the plaintiffs lawful possession by ousting him from the suit property. Possessory title is a good title as against everybody other than the lawful owner. In Ismail Ariff v. Mahomed Ghouse, (1893) 20 Ind App 99 (PC), the Judicial Committee came to the conclusion that a person having possessory title can get a declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession. Therein it was observed that the possession of the plaintiff was a sufficient evidence of title as owner against the defendant.10. In Narayana Row v. Dharmachar, (1903) ILR 26 Mad 514 a bench of the Madras High Court consisting of Bhashyam Ayyangar and Moore, JJ., held that possession is, under the Indian, as under the English law, good title against all but the true owner.Section 9 of the Specific Relief Act is in no way inconsistent with the position that as against a wrongdoer, prior possession of the plaintiff, in an action of ejectment, is sufficient title, even if the suit be brought more than six months after the act of dispossession complained of and that the wrongdoer cannot successfully resist the suit by showing that the title and right to possession are in a third person.The same view was taken by the Bombay High Court in Krishnarao Yashwant v. Vasudev Appaji Ghotikar, (1884) ILR 8 Bom 371. That was also the view taken by the Allahabad High Court - See Umrao Singh v. Ramji Das, ILR 36 All 51 = (AIR 1914 All 54 (2)). Wali Ahmed Khan v. Ajudhia Kundu, (1891) ILR 13 All 537. In Subodh Gopal Bose v. Province of Bihar, AIR 1950 Pat 222 the Patna High Court adhered to the view taken by the Madras, Bombay and Allahabad High Courts. The contrary view taken by the Calcutta High Court in Debi Churn Boldo v. Issur Chunder Manjee, (1883) ILR 9 Cal 39; Ertaza Hossein v. Bany Mistry, (1883) ILR 9 Cal 130, Purmeshur Chowdhry v. Birjo Lall Chowdhry, (1890) ILR 17 Cal 256 and Nisa Chand Gaita v. Kanchiram Bagani, (1899) ILR 26 Cal 579, in our opinion does not lay down the law correctly.
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Makan Jivan & Others Vs. State of Gujarat | made available to the accused. This contention proceeds on the basis that P.Ws. 3 and 4, must have given more statements than one before the police. It may be noted that neither P.W. 4 was asked as to whether she had put any thumb mark on the statement given by her to the police nor was the investigating officer asked whether any witness had signed or put his thumb mark on his statement. Further, the statements made by witnesses during investigations should not be got signed by them if they are reduced into writing and in this case the investigating officer could not have thought that the witnesses so closely related to one another could ever have been gained over. Evidently the accused were trying to exploit the statement made by P.W. 3 under some misapprehension. But the learned Trial Judge would have done well to clear this point by questioning the investigating officer and by looking into the relevant records. 14. It was next urged that there was conflict between the medical evidence and the evidence of P.Ws. 2 to 4. This argument was based on the evidence give by P.W. 10. We have already mentioned that we would prefer to act on the testimony of P.W. 11 rather than on the testimony of P.W. 10. P.W. 11s evidence accords with the prosecution version. 15. The only other contention taken was that as the accused were not properly questioned under Section 342, Cr. P.C., the prosecution should fail. Section 342, Cr. P.C., provides that for the purposes of enabling the accused to explain any circumstances appearing in the evidence against him, the court may, at any stage of any inquire or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. In the instant case what the Trial Court has done is that after reading out the statements made by the accused in the Committal Court, it merely asked them as to what they had to say about the prosecution evidence recorded in their presence. This is a wholly unsatisfactory way of questioning the accused. The Trial Court had a duly to put to each of the accused the various circumstances appearing against them and further put the prosecution case generally for the purpose of affording the accused an opportunity to explain the circumstances appearing against them. There is no doubt that the examination of the accused under Section 342, Cr. P.C. in this case is highly defective. But that does not by itself vitiate the trial. It is for the defence to satisfy the court that because of the defect in the procedure adopted accused have been prejudiced. 16. In Ajmer Singh v. The State of Punjab, (1953 SCR 418 : AIR 1953 SCJ 76 : 1953 SCJ 85.) this Court ruled that the duty of the Sessions Judge under Section 342, Cr. P.C. to examine the accused is not discharged by merely reading over the questions put to the accused in the Magistrates Court and his answers, and by asking him whether he has to say anything about them. It is also not a sufficient compliance with the section to generally ask the accused that, having heard the prosecution evidence what he has to say about it. He must be questioned separately about each material circumstance which is intended to be used against him. The whole object of the section is to afford the accused a fair and proper opportunity of explaining the circumstances which appear against him and the questions must be fair and must be couched in a form which an ignorant or illiterate person may be able to appreciate and understand. It is, however, well settled that every error or omission in complying with Section 342 does not necessarily vitiate the trail. Errors of that type fall within the category of curable irregularities and the question whether the trial has been vitiated depends in each case upon the degree of error and upon whether prejudice has been or is likely to have been caused to the accused. Despite the defective questioning of the accused in that case the court came to the conclusion that on the facts of that case, the accused were not prejudiced as the material evidence in that case was direct evidence and that evidence was taken in the presence of the accused who was represented by a counsel. 17. The facts before this Court in Bimbadhar Pradhan v. State of Orissa, (1956 SCR 206 : AIR 1956 SC 469 : 1956 SCJ 441.) are somewhat similar to those before us in case. Therein also the prosecution case rested on the testimony of the eye-witnesses. The only relevant question put to the accused in that case was "Have you got anything to say on the evidence of the witnesses". Therein it was contended that in view of the defective questioning of the accused under Section 342, Cr. P.C. the conviction of the accused must be set aside but this Court overruling that contention observed :"That (questioning of the accused) in our opinion, is sufficient in the circumstances of this case to show that the attention of the accused was called to the prosecution evidence. As to what is or is not a full compliance with the provisions of that section of the Code must depend upon the facts and circumstances of each case. In our opinion, cannot be said that the accused has been in any way prejudiced by the way he has been questioned under that section." 18. In this context it may be remembered that the plea of the accused persons in this case was that they were not present at the scene at the time of the occurrence. In view of that plea any further question to them would have been purposeless. | 0[ds]They were simple injuries. P.W. 4 was not produced before the doctor for examination. Her evidence is to the effect that as her husbands condition was critical, she chose to be by his side and therefore she did not appear before the doctor for examination. There is no reason toe her evidence on this point7. The prosecution case is fully supported by the testimony of P.Ws. 2, 3 and 4. Their presence at the scene at the time of the occurrence is probabilised by the injuries sustained by them. As mentioned earlier, the first information report in this case was laid within about an hour after the occurrence. Therein all the details of the occurrence had been given. Further the injured persons were produced for medical examination very soon after the occurrenceTheir examination was unnecessary for unfolding the prosecution case18. In this context it may be remembered that the plea of the accused persons in this case was that they were not present at the scene at the time of the occurrence. In view of that plea any further question to them would have been purposeless. | 0 | 3,183 | 206 | ### 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:
made available to the accused. This contention proceeds on the basis that P.Ws. 3 and 4, must have given more statements than one before the police. It may be noted that neither P.W. 4 was asked as to whether she had put any thumb mark on the statement given by her to the police nor was the investigating officer asked whether any witness had signed or put his thumb mark on his statement. Further, the statements made by witnesses during investigations should not be got signed by them if they are reduced into writing and in this case the investigating officer could not have thought that the witnesses so closely related to one another could ever have been gained over. Evidently the accused were trying to exploit the statement made by P.W. 3 under some misapprehension. But the learned Trial Judge would have done well to clear this point by questioning the investigating officer and by looking into the relevant records. 14. It was next urged that there was conflict between the medical evidence and the evidence of P.Ws. 2 to 4. This argument was based on the evidence give by P.W. 10. We have already mentioned that we would prefer to act on the testimony of P.W. 11 rather than on the testimony of P.W. 10. P.W. 11s evidence accords with the prosecution version. 15. The only other contention taken was that as the accused were not properly questioned under Section 342, Cr. P.C., the prosecution should fail. Section 342, Cr. P.C., provides that for the purposes of enabling the accused to explain any circumstances appearing in the evidence against him, the court may, at any stage of any inquire or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. In the instant case what the Trial Court has done is that after reading out the statements made by the accused in the Committal Court, it merely asked them as to what they had to say about the prosecution evidence recorded in their presence. This is a wholly unsatisfactory way of questioning the accused. The Trial Court had a duly to put to each of the accused the various circumstances appearing against them and further put the prosecution case generally for the purpose of affording the accused an opportunity to explain the circumstances appearing against them. There is no doubt that the examination of the accused under Section 342, Cr. P.C. in this case is highly defective. But that does not by itself vitiate the trial. It is for the defence to satisfy the court that because of the defect in the procedure adopted accused have been prejudiced. 16. In Ajmer Singh v. The State of Punjab, (1953 SCR 418 : AIR 1953 SCJ 76 : 1953 SCJ 85.) this Court ruled that the duty of the Sessions Judge under Section 342, Cr. P.C. to examine the accused is not discharged by merely reading over the questions put to the accused in the Magistrates Court and his answers, and by asking him whether he has to say anything about them. It is also not a sufficient compliance with the section to generally ask the accused that, having heard the prosecution evidence what he has to say about it. He must be questioned separately about each material circumstance which is intended to be used against him. The whole object of the section is to afford the accused a fair and proper opportunity of explaining the circumstances which appear against him and the questions must be fair and must be couched in a form which an ignorant or illiterate person may be able to appreciate and understand. It is, however, well settled that every error or omission in complying with Section 342 does not necessarily vitiate the trail. Errors of that type fall within the category of curable irregularities and the question whether the trial has been vitiated depends in each case upon the degree of error and upon whether prejudice has been or is likely to have been caused to the accused. Despite the defective questioning of the accused in that case the court came to the conclusion that on the facts of that case, the accused were not prejudiced as the material evidence in that case was direct evidence and that evidence was taken in the presence of the accused who was represented by a counsel. 17. The facts before this Court in Bimbadhar Pradhan v. State of Orissa, (1956 SCR 206 : AIR 1956 SC 469 : 1956 SCJ 441.) are somewhat similar to those before us in case. Therein also the prosecution case rested on the testimony of the eye-witnesses. The only relevant question put to the accused in that case was "Have you got anything to say on the evidence of the witnesses". Therein it was contended that in view of the defective questioning of the accused under Section 342, Cr. P.C. the conviction of the accused must be set aside but this Court overruling that contention observed :"That (questioning of the accused) in our opinion, is sufficient in the circumstances of this case to show that the attention of the accused was called to the prosecution evidence. As to what is or is not a full compliance with the provisions of that section of the Code must depend upon the facts and circumstances of each case. In our opinion, cannot be said that the accused has been in any way prejudiced by the way he has been questioned under that section." 18. In this context it may be remembered that the plea of the accused persons in this case was that they were not present at the scene at the time of the occurrence. In view of that plea any further question to them would have been purposeless.
### Response:
0
### Explanation:
They were simple injuries. P.W. 4 was not produced before the doctor for examination. Her evidence is to the effect that as her husbands condition was critical, she chose to be by his side and therefore she did not appear before the doctor for examination. There is no reason toe her evidence on this point7. The prosecution case is fully supported by the testimony of P.Ws. 2, 3 and 4. Their presence at the scene at the time of the occurrence is probabilised by the injuries sustained by them. As mentioned earlier, the first information report in this case was laid within about an hour after the occurrence. Therein all the details of the occurrence had been given. Further the injured persons were produced for medical examination very soon after the occurrenceTheir examination was unnecessary for unfolding the prosecution case18. In this context it may be remembered that the plea of the accused persons in this case was that they were not present at the scene at the time of the occurrence. In view of that plea any further question to them would have been purposeless.
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United Bank Of India Vs. Pijush Kanti Nandy | only provides for a rule of measurement. An employee, as noticed hereinbefore, was entitled to pension provided he has completed the specified period of service. How such a period of service would be computed is a matter which is governed by the statute. It is one thing to say that a statute provides for completion of fifteen years of minimum service, but if a provision provides for measurement of the period, the same cannot be lost sight of. Provision of the Regulations which are beneficial in nature, in our opinion, should be construed liberally." In that case, the question arose as to how the lack in period of service of less than one year shall be construed. This Court held that Regulation 18 was not controlled by Regulations 16, 17, 19, 23 etc. as it provided for a Rule of Measurement. It, is however, trite that even a beneficial legislation should not be extended to such an extent whereby it would take into within its fold a situation which was not contemplated under the statute. 18. Could the period of service computed by including a period of five years as provided for in clause (5) of Regulation 29 is the question. In our opinion, it was not. Definition of `qualifying service is restrictive in nature. It uses the word `means and not `includes or `means and includes. Thus, the construction of `qualifying service must ordinarily be kept confined to the service rendered while on duty. He may be in service even otherwise although not rendering any duty. Those exigencies of situation are covered by the other types of cases which would come within the purview thereof. A person who is not in service cannot be said to be entitled to the benefit thereof. The term `otherwise should be read ejusdem generis. The term `otherwise in the context of the `Regulations should be construed so that it can become meaningful one. For the said purpose, the employee concerned was required to be in service. It is not possible to hold in absence of any express words that the eligibility criteria laid down in the Regulations for obtaining the benefit of pension, i.e., the qualifying service should be construed in such a manner that a person even not in service would be deemed to be in service. The statute does not raise a legal fiction. A strict construction of the term "qualifying service" therefor, in our opinion, would not be appropriate.In Siddeshwari Cotton Mills (P) Ltd. v. Union of India (UOI) & Anr. [(1989) 2 SCC 458] , the Supreme Court while discussing the definition of `manufacture under section 2(f) of the Central Excise and Salt Act, 1944 whether the relevant process fall within `any other process" thereby within the provision of section 2(f)(v) the Court looked at the meaning of `the expression ejus-dem-generis... which means of the same kind or nature...signifies a principle of construction whereby words in a statute which are otherwise wide but are associated in the text with more limited words are, by implication, given a restricted operation and are limited to matters of the same class or genus as preceding them. If a list or string or family of genus-describing terms is followed by wider or residuary or sweeping-up words, then the verbal context and the linguistic implications of the preceding words limit the scope of such words.The Court also discussed various other texts while looking at the term. In `Statutory Interpretation Rupert Cross says: "...The draftsman must be taken to have inserted the general words in case something which ought to have been included among the specifically enumerated items had been omitted..." The principle underlying this approach to statutory construction is that the subsequent general words were only intended to guard against some accidental omission in the objects of the kind mentioned earlier and were not intended to extend to objects of a wholly different kind. This is a presumption and operates unless there is some contrary indication. But the preceding words or expressions of restricted meaning must be susceptible of the import that they represent a class. If no class can be found, ejusdem generis rule is not attracted and such broad construction as the subsequent words may admit will be favoured. As a learned author puts it: "...if a class can be found, but the specific words exhaust the class, then rejection of the rule may be favoured because its adoption would make the general words unnecessary; if however, the specific words do not exhaust the class, then adoption of the rule may be favoured because its rejection would make the specific words unnecessary." Cessation of contract of service may be of different types, i.e., by punishment or by end of contract. It, however, does not take within its purview an order of suspension as the same does not bring about a cessation. 19. In National Textile Corporation (M.P.) Limited v. M.R. Jadhav [(2008 (7) SCC 29] , this Court held: "Subject, of course, to the terms "invitation to treat" as also those of the offer as envisaged under the Contract Act, an offer has to be accepted. Unless an offer is accepted, a binding contract does not come into being. A voluntary retirement scheme contemplates cessation of the relationship of master and servant. The rights and obligations of the parties thereto shall become enforceable only on completion of the contract. Unless such a stage is reached, no valid contract can be said to have come into force. Acceptance of an offer must, therefore, be communicated." 20. We, therefore, are of the opinion that in a case of this nature, clause (5) of Regulation 29 would be attracted only in a case where the concerned employee has completed 20 years of qualifying service. Clause (5) of 29 would be applicable for the purpose of granting a higher monetary benefit in the matter of computation of pension. It does not provide for measurement of the period as was in the case of Indian Bank (supra). | 1[ds]18. Could the period of service computed by including a period of five years as provided for in clause (5) of Regulation 29 is the question. In our opinion, it was not. Definition of `qualifying service is restrictive in nature. It uses the word `means and not `includes or `means and includes. Thus, the construction of `qualifying service must ordinarily be kept confined to the service rendered while on duty. He may be in service even otherwise although not rendering any duty. Those exigencies of situation are covered by the other types of cases which would come within the purview thereof. A person who is not in service cannot be said to be entitled to the benefit thereof. The term `otherwise should be read ejusdem generis. The term `otherwise in the context of the `Regulations should be construed so that it can become meaningful one. For the said purpose, the employee concerned was required to be in service. It is not possible to hold in absence of any express words that the eligibility criteria laid down in the Regulations for obtaining the benefit of pension, i.e., the qualifying service should be construed in such a manner that a person even not in service would be deemed to be in service. The statute does not raise a legal fiction. A strict construction of the term "qualifying service" therefor, in our opinion, would not be appropriate.In Siddeshwari Cotton Mills (P) Ltd. v. Union of India (UOI) & Anr. [(1989) 2 SCC 458] , the Supreme Court while discussing the definition of `manufacture under section 2(f) of the Central Excise and Salt Act, 1944 whether the relevant process fall within `any other process" thereby within the provision of section 2(f)(v) the Court looked at the meaning of `the expressionwhich means of the same kind or nature...signifies a principle of construction whereby words in a statute which are otherwise wide but are associated in the text with more limited words are, by implication, given a restricted operation and are limited to matters of the same class or genus as preceding them. If a list or string or family ofterms is followed by wider or residuary orwords, then the verbal context and the linguistic implications of the preceding words limit the scope of such words.Theprinciple underlying this approach to statutory construction is that the subsequent general words were only intended to guard against some accidental omission in the objects of the kind mentioned earlier and were not intended to extend to objects of a wholly different kind. This is a presumption and operates unless there is some contrary indication. But the preceding words or expressions of restricted meaning must be susceptible of the import that they represent a class. If no class can be found, ejusdem generis rule is not attracted and such broad construction as the subsequent words may admit will beof contract of service may be of different types, i.e., by punishment or by end of contract. It, however, does not take within its purview an order of suspension as the same does not bring about a cessation.We, therefore, are of the opinion that in a case of this nature, clause (5) of Regulation 29 would be attracted only in a case where the concerned employee has completed 20 years of qualifying service. Clause (5) of 29 would be applicable for the purpose of granting a higher monetary benefit in the matter of computation of pension. It does not provide for measurement of the period as was in the case of Indian Bank (supra). | 1 | 5,015 | 679 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
only provides for a rule of measurement. An employee, as noticed hereinbefore, was entitled to pension provided he has completed the specified period of service. How such a period of service would be computed is a matter which is governed by the statute. It is one thing to say that a statute provides for completion of fifteen years of minimum service, but if a provision provides for measurement of the period, the same cannot be lost sight of. Provision of the Regulations which are beneficial in nature, in our opinion, should be construed liberally." In that case, the question arose as to how the lack in period of service of less than one year shall be construed. This Court held that Regulation 18 was not controlled by Regulations 16, 17, 19, 23 etc. as it provided for a Rule of Measurement. It, is however, trite that even a beneficial legislation should not be extended to such an extent whereby it would take into within its fold a situation which was not contemplated under the statute. 18. Could the period of service computed by including a period of five years as provided for in clause (5) of Regulation 29 is the question. In our opinion, it was not. Definition of `qualifying service is restrictive in nature. It uses the word `means and not `includes or `means and includes. Thus, the construction of `qualifying service must ordinarily be kept confined to the service rendered while on duty. He may be in service even otherwise although not rendering any duty. Those exigencies of situation are covered by the other types of cases which would come within the purview thereof. A person who is not in service cannot be said to be entitled to the benefit thereof. The term `otherwise should be read ejusdem generis. The term `otherwise in the context of the `Regulations should be construed so that it can become meaningful one. For the said purpose, the employee concerned was required to be in service. It is not possible to hold in absence of any express words that the eligibility criteria laid down in the Regulations for obtaining the benefit of pension, i.e., the qualifying service should be construed in such a manner that a person even not in service would be deemed to be in service. The statute does not raise a legal fiction. A strict construction of the term "qualifying service" therefor, in our opinion, would not be appropriate.In Siddeshwari Cotton Mills (P) Ltd. v. Union of India (UOI) & Anr. [(1989) 2 SCC 458] , the Supreme Court while discussing the definition of `manufacture under section 2(f) of the Central Excise and Salt Act, 1944 whether the relevant process fall within `any other process" thereby within the provision of section 2(f)(v) the Court looked at the meaning of `the expression ejus-dem-generis... which means of the same kind or nature...signifies a principle of construction whereby words in a statute which are otherwise wide but are associated in the text with more limited words are, by implication, given a restricted operation and are limited to matters of the same class or genus as preceding them. If a list or string or family of genus-describing terms is followed by wider or residuary or sweeping-up words, then the verbal context and the linguistic implications of the preceding words limit the scope of such words.The Court also discussed various other texts while looking at the term. In `Statutory Interpretation Rupert Cross says: "...The draftsman must be taken to have inserted the general words in case something which ought to have been included among the specifically enumerated items had been omitted..." The principle underlying this approach to statutory construction is that the subsequent general words were only intended to guard against some accidental omission in the objects of the kind mentioned earlier and were not intended to extend to objects of a wholly different kind. This is a presumption and operates unless there is some contrary indication. But the preceding words or expressions of restricted meaning must be susceptible of the import that they represent a class. If no class can be found, ejusdem generis rule is not attracted and such broad construction as the subsequent words may admit will be favoured. As a learned author puts it: "...if a class can be found, but the specific words exhaust the class, then rejection of the rule may be favoured because its adoption would make the general words unnecessary; if however, the specific words do not exhaust the class, then adoption of the rule may be favoured because its rejection would make the specific words unnecessary." Cessation of contract of service may be of different types, i.e., by punishment or by end of contract. It, however, does not take within its purview an order of suspension as the same does not bring about a cessation. 19. In National Textile Corporation (M.P.) Limited v. M.R. Jadhav [(2008 (7) SCC 29] , this Court held: "Subject, of course, to the terms "invitation to treat" as also those of the offer as envisaged under the Contract Act, an offer has to be accepted. Unless an offer is accepted, a binding contract does not come into being. A voluntary retirement scheme contemplates cessation of the relationship of master and servant. The rights and obligations of the parties thereto shall become enforceable only on completion of the contract. Unless such a stage is reached, no valid contract can be said to have come into force. Acceptance of an offer must, therefore, be communicated." 20. We, therefore, are of the opinion that in a case of this nature, clause (5) of Regulation 29 would be attracted only in a case where the concerned employee has completed 20 years of qualifying service. Clause (5) of 29 would be applicable for the purpose of granting a higher monetary benefit in the matter of computation of pension. It does not provide for measurement of the period as was in the case of Indian Bank (supra).
### Response:
1
### Explanation:
18. Could the period of service computed by including a period of five years as provided for in clause (5) of Regulation 29 is the question. In our opinion, it was not. Definition of `qualifying service is restrictive in nature. It uses the word `means and not `includes or `means and includes. Thus, the construction of `qualifying service must ordinarily be kept confined to the service rendered while on duty. He may be in service even otherwise although not rendering any duty. Those exigencies of situation are covered by the other types of cases which would come within the purview thereof. A person who is not in service cannot be said to be entitled to the benefit thereof. The term `otherwise should be read ejusdem generis. The term `otherwise in the context of the `Regulations should be construed so that it can become meaningful one. For the said purpose, the employee concerned was required to be in service. It is not possible to hold in absence of any express words that the eligibility criteria laid down in the Regulations for obtaining the benefit of pension, i.e., the qualifying service should be construed in such a manner that a person even not in service would be deemed to be in service. The statute does not raise a legal fiction. A strict construction of the term "qualifying service" therefor, in our opinion, would not be appropriate.In Siddeshwari Cotton Mills (P) Ltd. v. Union of India (UOI) & Anr. [(1989) 2 SCC 458] , the Supreme Court while discussing the definition of `manufacture under section 2(f) of the Central Excise and Salt Act, 1944 whether the relevant process fall within `any other process" thereby within the provision of section 2(f)(v) the Court looked at the meaning of `the expressionwhich means of the same kind or nature...signifies a principle of construction whereby words in a statute which are otherwise wide but are associated in the text with more limited words are, by implication, given a restricted operation and are limited to matters of the same class or genus as preceding them. If a list or string or family ofterms is followed by wider or residuary orwords, then the verbal context and the linguistic implications of the preceding words limit the scope of such words.Theprinciple underlying this approach to statutory construction is that the subsequent general words were only intended to guard against some accidental omission in the objects of the kind mentioned earlier and were not intended to extend to objects of a wholly different kind. This is a presumption and operates unless there is some contrary indication. But the preceding words or expressions of restricted meaning must be susceptible of the import that they represent a class. If no class can be found, ejusdem generis rule is not attracted and such broad construction as the subsequent words may admit will beof contract of service may be of different types, i.e., by punishment or by end of contract. It, however, does not take within its purview an order of suspension as the same does not bring about a cessation.We, therefore, are of the opinion that in a case of this nature, clause (5) of Regulation 29 would be attracted only in a case where the concerned employee has completed 20 years of qualifying service. Clause (5) of 29 would be applicable for the purpose of granting a higher monetary benefit in the matter of computation of pension. It does not provide for measurement of the period as was in the case of Indian Bank (supra).
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Pranita Powerloom Coop.Soc.Ltd Vs. State Of Maharashtra | act as the Cooperative Society was nothing but a company and the necessary condition of the contribution by the State Government was not till then fulfilled as the State Government had indeed not contributed nor had it agreed to contribute so as to give a colour that the land acquisition was for the public purpose.30. On the other hand, it is very surprising that the High Court directed the State Government to issue a Notification under Section 4 ignoring the fact that no contribution was made and it suggested therein by way of sixth clause that the requirement of the government contribution would not come in the way of initiating the acquisition proceedings. The High Court, thus, had left all the questions undecided. All this was pointed out to the High Court in subsequent petition wherein the petitioners-appellants sought the review of the order dated 01.12.06. However, that order is also clearly silent on the questions raised on the spacious ground that all the concerns of the parties could be taken care of in the enquiry under Section 5A. In fact that was the mainstay of the argument of Shri Gupta that even if the petitioners owned the land and even if they were parties who could develop the land for the industrial purposes, yet all that could be taken care of under Section 5A enquiry and they could be provided for the plots by the respondent No.4 Society after the land acquisition process was completed. What we fail to understand is if the direction to initiate Section 4 of the Act itself emanated in an illegal fashion whether the concerned petitioners should be put to a rigmarole of an enquiry under Section 5A. The answer has to be negative.31. The basic contention of the Ichalkaranji Society that it was entitled exclusively to the land acquisition in respect of all the lands in the area is incorrect in law as has been shown in the affidavit on behalf the State of Maharashtra. It is obvious that the State of Maharashtra proceeded to issue the Notification under Section 4 merely because of the direction of the High Court. It is quite another thing that now at this juncture the State of Maharashtra is trying to justify the land acquisition proceedings on the spacious ground that the petitioners-appellants contentions could be considered in the Section 5A enquiry. We do not wish to go into the question as to whether the queries raised by the State of Maharashtra were justified or not. However, we must say that the High Court has not even bothered to consider the order dated 30.08.05 nor has it set it aside specifically. Following queries were made which were found not to have been complied with by the petitioner-Society. They were: "1. For the question of land acquisition, which efforts are made by the Society for acquiring maximum proper place in the area?2. Which efforts have been made by the Society for obtaining such lands by private transactions by giving proper compensation? As to whether those efforts are succeeded?3. How the area proposed for the questioned proposal is proper for the object of acquisition?4. Whether the entire area propose in question is required? Or whether the part of area therein if acquired will be sufficient?5. Which proposal/projects the society has for using the acquired land immediately?6. If the area under acquisition is proper for good agriculture, besides that land, whether any other appropriate land is not available for proposed acquisition?" 32. The communication thereafter mentions that the Ichalkaranji Society had complied with the issues raised at reference No. 3 and 4 only and since the other deficiencies have not been removed the proposal was being cancelled. Even in the earlier paragraphs the attention of the Society was drawn towards the fact that the acquisition could be done only after the nominal compensation of Rs. 100/-, a share of the Government towards expenses of land acquisition. It is further pointed out in the same paragraph that the Association, namely, the petitioner Society would be required to submit a guarantee in triplicate about the availability of funds in the present land acquisition letter and it is only after this compliance that the land acquisition proceedings could be initiated. It is also pointed that the Association i.e. the petitioner-Society could be accepted only as a company and, therefore, it had to submit a report under Rule 4 (3) of the Land Acquisition Company Rules, 1963.33. When we have a glance on the order of the High Court it is clear that the High Court has not considered any of these important objections. In this backdrop, it is pointed out by the learned counsel for the appellant-petitioners that they are the owners of the land and each has the capacity for developing the industrial estate as per the regional plan and, therefore, there was no justification in supporting the acquisition proceedings even without any compliance whatsoever by the respondent No.4 Society or treating the respondent Nos. 4 and 5 to be the only players in the field. It was pointed out that like respondent No.5 i.e. Pride India Cooperative Textile Park, the petitioners-appellant also owned the land and they are all industrial units. Therefore, there was nothing special with the respondent No.5, and if the estate was given to respondent No. 5 i.e. Pride India Cooperative Textile Park merely because their proposal was also pending, the similar direction should have been given to the others whose proposal were either pending or who were capable of making any such proposal. All that was not done and the matters were rushed on the basis of the mere compromise formula which too was suggested by the High Court.34. In these circumstances, we are of the clear opinion that merely because Section 5A enquiry is pending and merely because the objection can be taken by the petitioners, the respondents by themselves will not be able to cure the illegality committed in the issuance of Section 4 Notification. | 1[ds]25. It cannot indeed be disputed that the basic order is dated 01.12.06 which undoubtedly was disposed of on the compromise which also appears to have been brought about by the High Court itself. We have noted the basic features of this compromise in paragraph 12 of our judgment. It is extremely strange that the High Court presumed that there were only two players in the field, namely, the Ichalkaranji Society and the Pride India Cooperative Textile Park. The High Court seem to have almost presumed that these two Societies alone mattered in the whole affair and were the only two Societies which were entitled to the land to be acquired by the State Government for establishment of the industrial estate. There can be no dispute that Ichalkaranji Society was established for the purposes of developing industrial estates and that it had done so in the past. There can also be no dispute that it had a long waiting list of about a thousand persons wanting the plots in the industrial estate for establishing industries. The question is whether it had that exclusive right. There is nothing at least brought either to the notice of the High Court or before this Court to suggest that there is any exclusivity in favour of Ichalkaranji Society. Indeed, in the field there were so many other Societies which were also of the same nature. At least three of them were industrial societies they being Chhatrapati Shivaji Powerloom Cooperative Society, Mahalaxmi Sahakari Audyogik Vasahat Maryadit . and Jagjivan Ram Magal Vargiya Charmakar Audyogik Sahakari Sanstha. Their status was also identical as they were registered as industrial cooperative societies as contemplated by Maharashtra Cooperative Societies Act. It is, therefore, clear that the High Court proceeded on the presumption that the only two relevant players in the field were respondent Nos. 4 and 5 herein i.e. Ichalkaranji society and Pride India Cooperative Textile Park and went on to presume that they alone had the exclusive rights of getting the lands from the Government by way of land acquisition. This, in our opinion, is a wrong presumption.26. In the reply affidavit which has been sworn by Shri S.D. Chavan, Special Land Acquisition Officer, Kolhapur, it was specifically urged that specific queries were put to the Ichalkaranji Society vide letter dated 02.03.04 and letter dated 29.09.04 and the Manger of the Ichalkaranji Society had also attended office of the Special Land Acquisition Officer twice in relation to those queries. Those queries were not specifically met by Ichalkaranji Society. It was further pointed out in the affidavit that the land in question was earmarked in the industrial zone in the zone sanctioned Regional plan ofregion. However, the said land had not been reserved only for the Ichalkaranji Society in the said regional plan and, therefore, the Ichalkaranji Society could not exclusively claim the same. In the said affidavit it was again denied that the proposal made by the Ichalkaranji Society was in terms of the Land Acquisition Act and in fact the Ichalkaranji Society was merely relying upon its correspondences with the Industries Department. It was further contended that Ichalkaranji Society was directed to fulfil various queries suggested by State of Maharashtra vide its letter dated 02.03.04. One of the queries was the opinion about the sanction of the Industrial Department of State of Maharashtra and also for the fulfillment of requirement under Section 37 (f) (vii) along with the requirement of the second proviso of Section 6 (1) of the Land Acquisition, 1894 Act i.e. about public purpose. It was pointed out further that the Cooperative Society was covered under the provisions of Section 3 (e) of the Land Acquisition Act and was a company for the purpose of Land Acquisition Act, 1894. It was further pointed out in these queries that unless a nominal contribution by the State Government was made, the said acquisition could not be set up for the public purpose. It was also pointed out further in the said affidavit that though the Director of Industries had asked to reserve the remaining land for the petitioner, it had nothing to do with the Collector since the land was earmarked as an industrial zone in the sanctioned regional plan ofregion and there was no reservation of industrial land for the petitioner in the regional plan after following the necessary procedure under Section 20 of the Maharashtra Regional and Town Planning Act, 1966. It was also pointed out that the information required under Rule 4(3) of the Land Acquisition (Company Rules), 1963 as also the information required under Section 39 of the Land Acquisition Act was not supplied by the Ichalkaranji Society for about one year and that it was also expressed in the affidavit that the petitioner gave the impression that it was not ready to comply with the information under law and, therefore, the Collector in his order dated 30.08.05 cancelled the land acquisition proposal.27. It is also pointed out in the affidavit that all the concerned lands were private lands and could also be developed by their respective owners for industrial purposes. The claim of theSociety that it was a land reserved for them alone, was specifically refuted. It is pointed out that in order to provide such a reservation in favour of Ichalkaranji Society, a Notification in the sanctioned regional plan should have been made after following the legal procedure laid down under Section 20 of the Maharashtra Regional Town Planning Act. Thus, it was clear that the High Court was bound to consider these grounds raised against the claim in the writ petition. The High Court, however, does not seem to have considered any of these questions.28. It is interesting to see how the matter proceeded. On 16.11.06, the High Court passed the order that after hearing the counsel for theSociety and counsel for respondent No.India Cooperative Textile Park, the High Court was of the considered opinion that, at the first instance, the petitioner and the respondent No.5 Society must arrive at a compromise in sharing the proposed land for acquisition and, thereafter, it would be appropriate for them to approach the Collector with these compromise terms reduced in writing so as to enable him to issue a Notification under Section 4 of the Land Acquisition Act, 1894.29. The second order has been passed on 01.12.06 wherein the High Court has recorded the consent terms. The High Court has mentioned the lands covered as also the map provided wherein the lands acquired by the 5th respondent as also the land claimed by the petitioner were shown in different colours. In all these consent terms which we have seen, specifically, there is not even a stray reference to the Government or to any other private party who admittedly owned some of the lands mentioned therein. Lastly, the order came to be passed on 01.12.06 accepting the said terms. What surprises us is the apathy on the part of the High Court to decide the question raised by the Government in its reply affidavit and to point out whether thecould claim an exclusive right of the land acquisition along with 5th respondent when there was no reservation in its name under the provisions of Maharastra Regional and Town Planning Act. Such reservation, undoubtedly, required the procedure to be followed by Section 20, which objection was specifically raised in the affidavit by the State Government. It is on that the State Government asserted that there could not be any exclusivity in favour of theso as to claim the compulsory acquisition in its favour. Again the High Court completely ignored the fact that this was not at least till that time an acquisition under Chapter II of the act as the Cooperative Society was nothing but a company and the necessary condition of the contribution by the State Government was not till then fulfilled as the State Government had indeed not contributed nor had it agreed to contribute so as to give a colour that the land acquisition was for the public purpose.30. On the other hand, it is very surprising that the High Court directed the State Government to issue a Notification under Section 4 ignoring the fact that no contribution was made and it suggested therein by way of sixth clause that the requirement of the government contribution would not come in the way of initiating the acquisition proceedings. The High Court, thus, had left all the questions undecided. All this was pointed out to the High Court in subsequent petition wherein thesought the review of the order dated 01.12.06. However, that order is also clearly silent on the questions raised on the spacious ground that all the concerns of the parties could be taken care of in the enquiry under Section 5A. In fact that was the mainstay of the argument of Shri Gupta that even if the petitioners owned the land and even if they were parties who could develop the land for the industrial purposes, yet all that could be taken care of under Section 5A enquiry and they could be provided for the plots by the respondent No.4 Society after the land acquisition process was completed. What we fail to understand is if the direction to initiate Section 4 of the Act itself emanated in an illegal fashion whether the concerned petitioners should be put to a rigmarole of an enquiry under Section 5A. The answer has to be negative.31. The basic contention of the Ichalkaranji Society that it was entitled exclusively to the land acquisition in respect of all the lands in the area is incorrect in law as has been shown in the affidavit on behalf the State of Maharashtra. It is obvious that the State of Maharashtra proceeded to issue the Notification under Section 4 merely because of the direction of the High Court. It is quite another thing that now at this juncture the State of Maharashtra is trying to justify the land acquisition proceedings on the spacious ground that the petitioners-appellants contentions could be considered in the Section 5A enquiry. We do not wish to go into the question as to whether the queries raised by the State of Maharashtra were justified or not. However, we must say that the High Court has not even bothered to consider the order dated 30.08.05 nor has it set it aside specifically.The communication thereafter mentions that the Ichalkaranji Society had complied with the issues raised at reference No. 3 and 4 only and since the other deficiencies have not been removed the proposal was being cancelled. Even in the earlier paragraphs the attention of the Society was drawn towards the fact that the acquisition could be done only after the nominal compensation of Rs.a share of the Government towards expenses of land acquisition. It is further pointed out in the same paragraph that the Association, namely, the petitioner Society would be required to submit a guarantee in triplicate about the availability of funds in the present land acquisition letter and it is only after this compliance that the land acquisition proceedings could be initiated. It is also pointed that the Association i.e. thecould be accepted only as a company and, therefore, it had to submit a report under Rule 4 (3) of the Land Acquisition Company Rules, 1963.33. When we have a glance on the order of the High Court it is clear that the High Court has not considered any of these important objections. In this backdrop, it is pointed out by the learned counsel for the appellant-petitioners that they are the owners of the land and each has the capacity for developing the industrial estate as per the regional plan and, therefore, there was no justification in supporting the acquisition proceedings even without any compliance whatsoever by the respondent No.4 Society or treating the respondent Nos. 4 and 5 to be the only players in the field. It was pointed out that like respondent No.5 i.e. Pride India Cooperative Textile Park, the petitioners-appellant also owned the land and they are all industrial units. Therefore, there was nothing special with the respondent No.5, and if the estate was given to respondent No. 5 i.e. Pride India Cooperative Textile Park merely because their proposal was also pending, the similar direction should have been given to the others whose proposal were either pending or who were capable of making any such proposal. All that was not done and the matters were rushed on the basis of the mere compromise formula which too was suggested by the High Court.34. In these circumstances, we are of the clear opinion that merely because Section 5A enquiry is pending and merely because the objection can be taken by the petitioners, the respondents by themselves will not be able to cure the illegality committed in the issuance of Section 4 Notification. | 1 | 7,496 | 2,289 | ### Instruction:
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act as the Cooperative Society was nothing but a company and the necessary condition of the contribution by the State Government was not till then fulfilled as the State Government had indeed not contributed nor had it agreed to contribute so as to give a colour that the land acquisition was for the public purpose.30. On the other hand, it is very surprising that the High Court directed the State Government to issue a Notification under Section 4 ignoring the fact that no contribution was made and it suggested therein by way of sixth clause that the requirement of the government contribution would not come in the way of initiating the acquisition proceedings. The High Court, thus, had left all the questions undecided. All this was pointed out to the High Court in subsequent petition wherein the petitioners-appellants sought the review of the order dated 01.12.06. However, that order is also clearly silent on the questions raised on the spacious ground that all the concerns of the parties could be taken care of in the enquiry under Section 5A. In fact that was the mainstay of the argument of Shri Gupta that even if the petitioners owned the land and even if they were parties who could develop the land for the industrial purposes, yet all that could be taken care of under Section 5A enquiry and they could be provided for the plots by the respondent No.4 Society after the land acquisition process was completed. What we fail to understand is if the direction to initiate Section 4 of the Act itself emanated in an illegal fashion whether the concerned petitioners should be put to a rigmarole of an enquiry under Section 5A. The answer has to be negative.31. The basic contention of the Ichalkaranji Society that it was entitled exclusively to the land acquisition in respect of all the lands in the area is incorrect in law as has been shown in the affidavit on behalf the State of Maharashtra. It is obvious that the State of Maharashtra proceeded to issue the Notification under Section 4 merely because of the direction of the High Court. It is quite another thing that now at this juncture the State of Maharashtra is trying to justify the land acquisition proceedings on the spacious ground that the petitioners-appellants contentions could be considered in the Section 5A enquiry. We do not wish to go into the question as to whether the queries raised by the State of Maharashtra were justified or not. However, we must say that the High Court has not even bothered to consider the order dated 30.08.05 nor has it set it aside specifically. Following queries were made which were found not to have been complied with by the petitioner-Society. They were: "1. For the question of land acquisition, which efforts are made by the Society for acquiring maximum proper place in the area?2. Which efforts have been made by the Society for obtaining such lands by private transactions by giving proper compensation? As to whether those efforts are succeeded?3. How the area proposed for the questioned proposal is proper for the object of acquisition?4. Whether the entire area propose in question is required? Or whether the part of area therein if acquired will be sufficient?5. Which proposal/projects the society has for using the acquired land immediately?6. If the area under acquisition is proper for good agriculture, besides that land, whether any other appropriate land is not available for proposed acquisition?" 32. The communication thereafter mentions that the Ichalkaranji Society had complied with the issues raised at reference No. 3 and 4 only and since the other deficiencies have not been removed the proposal was being cancelled. Even in the earlier paragraphs the attention of the Society was drawn towards the fact that the acquisition could be done only after the nominal compensation of Rs. 100/-, a share of the Government towards expenses of land acquisition. It is further pointed out in the same paragraph that the Association, namely, the petitioner Society would be required to submit a guarantee in triplicate about the availability of funds in the present land acquisition letter and it is only after this compliance that the land acquisition proceedings could be initiated. It is also pointed that the Association i.e. the petitioner-Society could be accepted only as a company and, therefore, it had to submit a report under Rule 4 (3) of the Land Acquisition Company Rules, 1963.33. When we have a glance on the order of the High Court it is clear that the High Court has not considered any of these important objections. In this backdrop, it is pointed out by the learned counsel for the appellant-petitioners that they are the owners of the land and each has the capacity for developing the industrial estate as per the regional plan and, therefore, there was no justification in supporting the acquisition proceedings even without any compliance whatsoever by the respondent No.4 Society or treating the respondent Nos. 4 and 5 to be the only players in the field. It was pointed out that like respondent No.5 i.e. Pride India Cooperative Textile Park, the petitioners-appellant also owned the land and they are all industrial units. Therefore, there was nothing special with the respondent No.5, and if the estate was given to respondent No. 5 i.e. Pride India Cooperative Textile Park merely because their proposal was also pending, the similar direction should have been given to the others whose proposal were either pending or who were capable of making any such proposal. All that was not done and the matters were rushed on the basis of the mere compromise formula which too was suggested by the High Court.34. In these circumstances, we are of the clear opinion that merely because Section 5A enquiry is pending and merely because the objection can be taken by the petitioners, the respondents by themselves will not be able to cure the illegality committed in the issuance of Section 4 Notification.
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be passed on 01.12.06 accepting the said terms. What surprises us is the apathy on the part of the High Court to decide the question raised by the Government in its reply affidavit and to point out whether thecould claim an exclusive right of the land acquisition along with 5th respondent when there was no reservation in its name under the provisions of Maharastra Regional and Town Planning Act. Such reservation, undoubtedly, required the procedure to be followed by Section 20, which objection was specifically raised in the affidavit by the State Government. It is on that the State Government asserted that there could not be any exclusivity in favour of theso as to claim the compulsory acquisition in its favour. Again the High Court completely ignored the fact that this was not at least till that time an acquisition under Chapter II of the act as the Cooperative Society was nothing but a company and the necessary condition of the contribution by the State Government was not till then fulfilled as the State Government had indeed not contributed nor had it agreed to contribute so as to give a colour that the land acquisition was for the public purpose.30. On the other hand, it is very surprising that the High Court directed the State Government to issue a Notification under Section 4 ignoring the fact that no contribution was made and it suggested therein by way of sixth clause that the requirement of the government contribution would not come in the way of initiating the acquisition proceedings. The High Court, thus, had left all the questions undecided. All this was pointed out to the High Court in subsequent petition wherein thesought the review of the order dated 01.12.06. However, that order is also clearly silent on the questions raised on the spacious ground that all the concerns of the parties could be taken care of in the enquiry under Section 5A. In fact that was the mainstay of the argument of Shri Gupta that even if the petitioners owned the land and even if they were parties who could develop the land for the industrial purposes, yet all that could be taken care of under Section 5A enquiry and they could be provided for the plots by the respondent No.4 Society after the land acquisition process was completed. What we fail to understand is if the direction to initiate Section 4 of the Act itself emanated in an illegal fashion whether the concerned petitioners should be put to a rigmarole of an enquiry under Section 5A. The answer has to be negative.31. The basic contention of the Ichalkaranji Society that it was entitled exclusively to the land acquisition in respect of all the lands in the area is incorrect in law as has been shown in the affidavit on behalf the State of Maharashtra. It is obvious that the State of Maharashtra proceeded to issue the Notification under Section 4 merely because of the direction of the High Court. It is quite another thing that now at this juncture the State of Maharashtra is trying to justify the land acquisition proceedings on the spacious ground that the petitioners-appellants contentions could be considered in the Section 5A enquiry. We do not wish to go into the question as to whether the queries raised by the State of Maharashtra were justified or not. However, we must say that the High Court has not even bothered to consider the order dated 30.08.05 nor has it set it aside specifically.The communication thereafter mentions that the Ichalkaranji Society had complied with the issues raised at reference No. 3 and 4 only and since the other deficiencies have not been removed the proposal was being cancelled. Even in the earlier paragraphs the attention of the Society was drawn towards the fact that the acquisition could be done only after the nominal compensation of Rs.a share of the Government towards expenses of land acquisition. It is further pointed out in the same paragraph that the Association, namely, the petitioner Society would be required to submit a guarantee in triplicate about the availability of funds in the present land acquisition letter and it is only after this compliance that the land acquisition proceedings could be initiated. It is also pointed that the Association i.e. thecould be accepted only as a company and, therefore, it had to submit a report under Rule 4 (3) of the Land Acquisition Company Rules, 1963.33. When we have a glance on the order of the High Court it is clear that the High Court has not considered any of these important objections. In this backdrop, it is pointed out by the learned counsel for the appellant-petitioners that they are the owners of the land and each has the capacity for developing the industrial estate as per the regional plan and, therefore, there was no justification in supporting the acquisition proceedings even without any compliance whatsoever by the respondent No.4 Society or treating the respondent Nos. 4 and 5 to be the only players in the field. It was pointed out that like respondent No.5 i.e. Pride India Cooperative Textile Park, the petitioners-appellant also owned the land and they are all industrial units. Therefore, there was nothing special with the respondent No.5, and if the estate was given to respondent No. 5 i.e. Pride India Cooperative Textile Park merely because their proposal was also pending, the similar direction should have been given to the others whose proposal were either pending or who were capable of making any such proposal. All that was not done and the matters were rushed on the basis of the mere compromise formula which too was suggested by the High Court.34. In these circumstances, we are of the clear opinion that merely because Section 5A enquiry is pending and merely because the objection can be taken by the petitioners, the respondents by themselves will not be able to cure the illegality committed in the issuance of Section 4 Notification.
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International Cotton Corporation Private Limited & Another Vs. Commercial Tax Officer, Hubli & Others | at the point of sale and similarly the transactions of sale are exempt from tax generally whenever the goods are taxable at the point of purchase. The untenability of this argument would be apparent from the fact that this means that all sales and purchases are generally exempt from tax. This argument proceeds on the basis that the sale and purchase are different transactions. The Legislature might for the sake of convenience or from other considerations of policy make either a sale or a purchase taxable in respect of the sale of any particular goods. That does not mean that the sale and purchase in respect of the same transaction are two different transactions. They are two facets of the same transaction. Therefore when sub-section (2A) of Section 8 uses the words "the sale or, as the case may be, the purchase" it is merely referring to the fact that State Sales Tax Acts make either the sale or purchase taxable and not that where the sale is taxable the purchase is exempt from tax and where the purchase is taxable the sale is exempt from tax and therefore where one of them is exempt from tax in respect of an intra-State sale the inter-State sale is completely exempt from tax. We agree with the view of the Mysore High Court that the object of sub-section (2A) of section 8 is to exempt transaction of sale of any goods if they are wholly exempt from the tax under the sales tax law of the appropriate State and make the said sale chargeable at lower rates where under the Sales Tax Act of the State the sale transactions are chargeable to tax at a lower rate and it is not correct to say that where goods are taxable at the point of purchase or sale the transaction is exempt from tax generally. A sales tax has necessarily to be levied on a sale or purchase and this argument implies that all sales are exempt from tax. The plain meaning of the said subsection is that if under the sales tax law of the appropriate State no tax is levied either at the point of sale or at the point of purchase at any stage the tax under the Act shall be nil. Reading S. 6 (1-A) and Sec. 8 (2-A) together along with the Explanation the conclusion deducible would be this: where the intra-State sales of certain goods are liable to tax, even though only at one point, whether of purchase or of sale, a subsequent inter-State sale of the same commodity is liable to tax, but where that commodity is not liable to tax at all if it were an intra-State sale the inter-State sale of that commodity is also exempt from tax. Where an intra-State sale of a particular commodity is taxable at a lower rate than 3 per cent then the tax on the inter-State sale of that commodity will be at that lower rate. A sale or purchase of any goods shall not be exempt from tax in respect of inter-State sales of those commodities if as an intra-State sale the purchase or sale of those commodities is exempt only in specific circumstances or under specified conditions or is leviable on the sale or purchase at specified stages. On this interpretation Section 6 (1A) as well as Section 8 (2A) can stand together.8. Nor are we able to accept the contention that the Sales Tax Officers had no power to rectify the assessment orders after the coming into force of the Central Sales Tax (Amendment) Act, 1969 on the ground that there was no error apparent on the face of the record. This argument is based on the fact that in two decisions in Mysore Silk House v. State of Mysore. (1962) 13 STC 597 (Mys) and in Pierce Leslie and Co, v. State of Mysore (SRTP Nos. 63-64 of 1963) the Mysore High Court had taken the view that the inter-State transactions were not liable to tax and that view had been upheld by Yaddalams case 16 SIC 231 = (AIR 1965 SC 1510 ) and this Court in its decision in Josephs case, 25 STC 483 = (AIR 1969 NSC 154) did not consider the effect of sub-s. (2A) of Section 8 and therefore when there is such difference of opinion it cannot be said to be a case of an error on the face of the record. It is incorrect to say that because this Court had not, in Josephs case, considered the argument now put forward regarding the conflict between section 6 (1 A) and Section 8 (2A) there was no error apparent on the face of the record. Clearly when it said that the effect of the Central Sales Tax (Amendment) Act, 1969 is to supersede the judgment of this Court in Yaddalams case the Sales Tax Authorities were undoubtedly entitled to rectify their earlier rectification order which was made consequent on the decision in Yaddalams case. After the Central Sales Tax (Amendment) Act. 1969 and the decision of this Court in Josephs case there was no question about the error not being apparent on the face of the record. This attack on the rectification order, therefore, fails.9. The other attack that the rectification order is beyond the point of time provided in Rule 38 of the Mysore Sales Tax Rules is also without substance. What was sought to be rectified was the assessment order rectified as a consequence of this Courts decision in Yaddalams case, 16 STC 231 = (AIR 1965 SC 1510 ). After such rectification the original assessment order was no longer in force and that was not the order sought to be rectified. It is admitted that all the rectification orders would be within time calculated from the original rectification order. Rule 38 itself speaks of "any order" and there is no doubt that the rectified order is also "any order" which can be rectified under Rule 38. | 0[ds]4. It is next contended that as Section 8 (2) (a) states that the tax payable shall be calculated at the rate applicable to the sale or purchase of such goods inside the appropriate State, it is the rate that was prevalent when S. 8 (2) (a) was enacted that would be applicable and not any subsequent variations in this rate of tax. If this argument is accepted no question of unconstitutional delegation of the Parliaments legislative powers in favour of the State Legislatures would arise at all. It would be remembered that the ground for attacking the constitutionality of ,Section 8 (2) (a) is that Parliament if it is deemed to have permitted the application of rate of sales tax enacted by a State Legislature in respect of intra-State sales to inter-State sales also that would be impermissible delegation by Parliament of its legislative powers. We have already dealt with that question. All that is necessary now to add is that the rate applicable merely mean the rate applicable at the relevant point of time and not the rate applicable when Section 8 (2) (a) was enacted. The whole scheme of the Central Sales Tax Act is to adopt the machinery of the law relating to Sales Tax Acts of the various States, in cases where those states happen to be the appropriate States as also the rates prescribed by those Acts. Under Section 9 of the Act the tax payable by any dealer under the Central Sales Tax Act is to be levied and collected by the Government of India in accordance with the provisions of sub-section (2) of that section. Under sub-section (2) subject to the provisions of that Act and the rules made thereunder, the authorities for the time being empowered to assess, re-assess collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, re-assess, collect and enforce payment of tax, including any penalty. payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a tax or penalty payable under the general sales tax law of the State and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liability of a person carrying on business on the transferee of, or successor to such business, transfer of liability of any firm or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, refunds, rebates, penalties, compounding of offences and treatment of documents furnished by a dealer as confidential shall apply accordingly." Though the tax is levied and collected by the Government of India it is intended for the benefit of and is paid to the State whose officers assess and collect the tax. The adoption of the machinery of and the rate of tax prevalent in the ,State is for the convenience of assessment as well as for the convenience of the parties so that they will not have to deal with two sets of officers and two sets of laws in addition to avoiding discrimination between intra-State and inter-State sales. The very purpose of the Act and its scheme would be defeated or at least considerably impeded if the rates of tax applicable in any State in respect of intra-State sales were not applicable to inter-State sales where that State is the appropriate State. We are satisfied that the rate applicable is the rate applicable at the relevant Point of time. Only that interpretation is consistent with the legislative policy that inter-State trade should not be discriminatedargument is that while transactions between the 10th day of November, 1964, that is the date of judgment of this Court in Yaddalams case, 16 STC 231 = (AIR 1965 SC 1510 ) and the 9th day of June, 1969, that is the date on which the Central Sales Tax (Amendment) Ordinance, 1969, which preceded and was subsequently replaced by the Central Sales Tax (Amendment) Act, 1969, was promulgated, were exempted from the liability to pay tax, if in fact the tax in respect of these transactions had not been collected by the dealer, a similar concession had not been granted to dealers who were similarly situated, that is, who had not collected any tax on their sales prior to 10-11-1964 and that such concession should be available at least in the case of assessees who had not made any collection after the judgment of the Mysore High Court in Yaddalams case, that is, 23rd January, 1962 (reported in 1962-40 Mys LJ 577). There are two answers to this submission. Firstly, the fact that transactions of sale prior to the period before 10th November 1964 or at least the period between 23-1-1962 and 10-11-1964 were not given the same concession as the transactions between 10-11-1964 and 9-6-l969 does not mean that the latter concession is unconstitutional. A concession is not a matter of right. Where the Legislature taking into consideration the hardships caused to a certain set of tax-payers gives them a certain concession it does not mean that that action is bad as another set of taxpayers similarly situated may not have been given a similar concession. It would not be proper to strike down the provision of law giving concession to the former on the ground that the latter are not given such concession. Nor is it possible for this Court to direct that the latter set should be given a similar concession. That would mean legislation by this Court and this Court has no legislative powers.We are not able to appreciate the suggestion on behalf of the appellants that Section 6 (1A) read with Section 10 of the Amendment Act should be declared unconstitutional in so far as it relates to the period between 23-1-1962 and 10-11-l964 or how that is permissible. That means that the tax leviable under Section 6 (1A) cannot be levied during that period. That means even those who have collected the tax would escape. Secondly, in respect of that period also the dealers concerned might very often be the same set of persons and there can therefore be no question ofuntenability of this argument would be apparent from the fact that this means that all sales and purchases are generally exempt from tax. This argument proceeds on the basis that the sale and purchase are different transactions. The Legislature might for the sake of convenience or from other considerations of policy make either a sale or a purchase taxable in respect of the sale of any particular goods. That does not mean that the sale and purchase in respect of the same transaction are two different transactions. They are two facets of the same transaction. Therefore when sub-section (2A) of Section 8 uses the words "the sale or, as the case may be, the purchase" it is merely referring to the fact that State Sales Tax Acts make either the sale or purchase taxable and not that where the sale is taxable the purchase is exempt from tax and where the purchase is taxable the sale is exempt from tax and therefore where one of them is exempt from tax in respect of an intra-State sale the inter-State sale is completely exempt from tax. We agree with the view of the Mysore High Court that the object of sub-section (2A) of section 8 is to exempt transaction of sale of any goods if they are wholly exempt from the tax under the sales tax law of the appropriate State and make the said sale chargeable at lower rates where under the Sales Tax Act of the State the sale transactions are chargeable to tax at a lower rate and it is not correct to say that where goods are taxable at the point of purchase or sale the transaction is exempt from tax generally. A sales tax has necessarily to be levied on a sale or purchase and this argument implies that all sales are exempt from tax. The plain meaning of the said subsection is that if under the sales tax law of the appropriate State no tax is levied either at the point of sale or at the point of purchase at any stage the tax under the Act shall be nil. Reading S. 6 (1-A) and Sec. 8 (2-A) together along with the Explanation the conclusion deducible would be this: where the intra-State sales of certain goods are liable to tax, even though only at one point, whether of purchase or of sale, a subsequent inter-State sale of the same commodity is liable to tax, but where that commodity is not liable to tax at all if it were an intra-State sale the inter-State sale of that commodity is also exempt from tax. Where an intra-State sale of a particular commodity is taxable at a lower rate than 3 per cent then the tax on the inter-State sale of that commodity will be at that lower rate. A sale or purchase of any goods shall not be exempt from tax in respect of inter-State sales of those commodities if as an intra-State sale the purchase or sale of those commodities is exempt only in specific circumstances or under specified conditions or is leviable on the sale or purchase at specified stages. On this interpretation Section 6 (1A) as well as Section 8 (2A) can stand together.The other attack that the rectification order is beyond the point of time provided in Rule 38 of the Mysore Sales Tax Rules is also without substance. What was sought to be rectified was the assessment order rectified as a consequence of this Courts decision in Yaddalams case, 16 STC 231 = (AIR 1965 SC 1510 ). After such rectification the original assessment order was no longer in force and that was not the order sought to be rectified. It is admitted that all the rectification orders would be within time calculated from the original rectification order. Rule 38 itself speaks of "any order" and there is no doubt that the rectified order is also "any order" which can be rectified under Rule 38. | 0 | 5,029 | 1,903 | ### 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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at the point of sale and similarly the transactions of sale are exempt from tax generally whenever the goods are taxable at the point of purchase. The untenability of this argument would be apparent from the fact that this means that all sales and purchases are generally exempt from tax. This argument proceeds on the basis that the sale and purchase are different transactions. The Legislature might for the sake of convenience or from other considerations of policy make either a sale or a purchase taxable in respect of the sale of any particular goods. That does not mean that the sale and purchase in respect of the same transaction are two different transactions. They are two facets of the same transaction. Therefore when sub-section (2A) of Section 8 uses the words "the sale or, as the case may be, the purchase" it is merely referring to the fact that State Sales Tax Acts make either the sale or purchase taxable and not that where the sale is taxable the purchase is exempt from tax and where the purchase is taxable the sale is exempt from tax and therefore where one of them is exempt from tax in respect of an intra-State sale the inter-State sale is completely exempt from tax. We agree with the view of the Mysore High Court that the object of sub-section (2A) of section 8 is to exempt transaction of sale of any goods if they are wholly exempt from the tax under the sales tax law of the appropriate State and make the said sale chargeable at lower rates where under the Sales Tax Act of the State the sale transactions are chargeable to tax at a lower rate and it is not correct to say that where goods are taxable at the point of purchase or sale the transaction is exempt from tax generally. A sales tax has necessarily to be levied on a sale or purchase and this argument implies that all sales are exempt from tax. The plain meaning of the said subsection is that if under the sales tax law of the appropriate State no tax is levied either at the point of sale or at the point of purchase at any stage the tax under the Act shall be nil. Reading S. 6 (1-A) and Sec. 8 (2-A) together along with the Explanation the conclusion deducible would be this: where the intra-State sales of certain goods are liable to tax, even though only at one point, whether of purchase or of sale, a subsequent inter-State sale of the same commodity is liable to tax, but where that commodity is not liable to tax at all if it were an intra-State sale the inter-State sale of that commodity is also exempt from tax. Where an intra-State sale of a particular commodity is taxable at a lower rate than 3 per cent then the tax on the inter-State sale of that commodity will be at that lower rate. A sale or purchase of any goods shall not be exempt from tax in respect of inter-State sales of those commodities if as an intra-State sale the purchase or sale of those commodities is exempt only in specific circumstances or under specified conditions or is leviable on the sale or purchase at specified stages. On this interpretation Section 6 (1A) as well as Section 8 (2A) can stand together.8. Nor are we able to accept the contention that the Sales Tax Officers had no power to rectify the assessment orders after the coming into force of the Central Sales Tax (Amendment) Act, 1969 on the ground that there was no error apparent on the face of the record. This argument is based on the fact that in two decisions in Mysore Silk House v. State of Mysore. (1962) 13 STC 597 (Mys) and in Pierce Leslie and Co, v. State of Mysore (SRTP Nos. 63-64 of 1963) the Mysore High Court had taken the view that the inter-State transactions were not liable to tax and that view had been upheld by Yaddalams case 16 SIC 231 = (AIR 1965 SC 1510 ) and this Court in its decision in Josephs case, 25 STC 483 = (AIR 1969 NSC 154) did not consider the effect of sub-s. (2A) of Section 8 and therefore when there is such difference of opinion it cannot be said to be a case of an error on the face of the record. It is incorrect to say that because this Court had not, in Josephs case, considered the argument now put forward regarding the conflict between section 6 (1 A) and Section 8 (2A) there was no error apparent on the face of the record. Clearly when it said that the effect of the Central Sales Tax (Amendment) Act, 1969 is to supersede the judgment of this Court in Yaddalams case the Sales Tax Authorities were undoubtedly entitled to rectify their earlier rectification order which was made consequent on the decision in Yaddalams case. After the Central Sales Tax (Amendment) Act. 1969 and the decision of this Court in Josephs case there was no question about the error not being apparent on the face of the record. This attack on the rectification order, therefore, fails.9. The other attack that the rectification order is beyond the point of time provided in Rule 38 of the Mysore Sales Tax Rules is also without substance. What was sought to be rectified was the assessment order rectified as a consequence of this Courts decision in Yaddalams case, 16 STC 231 = (AIR 1965 SC 1510 ). After such rectification the original assessment order was no longer in force and that was not the order sought to be rectified. It is admitted that all the rectification orders would be within time calculated from the original rectification order. Rule 38 itself speaks of "any order" and there is no doubt that the rectified order is also "any order" which can be rectified under Rule 38.
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### Explanation:
dealer, a similar concession had not been granted to dealers who were similarly situated, that is, who had not collected any tax on their sales prior to 10-11-1964 and that such concession should be available at least in the case of assessees who had not made any collection after the judgment of the Mysore High Court in Yaddalams case, that is, 23rd January, 1962 (reported in 1962-40 Mys LJ 577). There are two answers to this submission. Firstly, the fact that transactions of sale prior to the period before 10th November 1964 or at least the period between 23-1-1962 and 10-11-1964 were not given the same concession as the transactions between 10-11-1964 and 9-6-l969 does not mean that the latter concession is unconstitutional. A concession is not a matter of right. Where the Legislature taking into consideration the hardships caused to a certain set of tax-payers gives them a certain concession it does not mean that that action is bad as another set of taxpayers similarly situated may not have been given a similar concession. It would not be proper to strike down the provision of law giving concession to the former on the ground that the latter are not given such concession. Nor is it possible for this Court to direct that the latter set should be given a similar concession. That would mean legislation by this Court and this Court has no legislative powers.We are not able to appreciate the suggestion on behalf of the appellants that Section 6 (1A) read with Section 10 of the Amendment Act should be declared unconstitutional in so far as it relates to the period between 23-1-1962 and 10-11-l964 or how that is permissible. That means that the tax leviable under Section 6 (1A) cannot be levied during that period. That means even those who have collected the tax would escape. Secondly, in respect of that period also the dealers concerned might very often be the same set of persons and there can therefore be no question ofuntenability of this argument would be apparent from the fact that this means that all sales and purchases are generally exempt from tax. This argument proceeds on the basis that the sale and purchase are different transactions. The Legislature might for the sake of convenience or from other considerations of policy make either a sale or a purchase taxable in respect of the sale of any particular goods. That does not mean that the sale and purchase in respect of the same transaction are two different transactions. They are two facets of the same transaction. Therefore when sub-section (2A) of Section 8 uses the words "the sale or, as the case may be, the purchase" it is merely referring to the fact that State Sales Tax Acts make either the sale or purchase taxable and not that where the sale is taxable the purchase is exempt from tax and where the purchase is taxable the sale is exempt from tax and therefore where one of them is exempt from tax in respect of an intra-State sale the inter-State sale is completely exempt from tax. We agree with the view of the Mysore High Court that the object of sub-section (2A) of section 8 is to exempt transaction of sale of any goods if they are wholly exempt from the tax under the sales tax law of the appropriate State and make the said sale chargeable at lower rates where under the Sales Tax Act of the State the sale transactions are chargeable to tax at a lower rate and it is not correct to say that where goods are taxable at the point of purchase or sale the transaction is exempt from tax generally. A sales tax has necessarily to be levied on a sale or purchase and this argument implies that all sales are exempt from tax. The plain meaning of the said subsection is that if under the sales tax law of the appropriate State no tax is levied either at the point of sale or at the point of purchase at any stage the tax under the Act shall be nil. Reading S. 6 (1-A) and Sec. 8 (2-A) together along with the Explanation the conclusion deducible would be this: where the intra-State sales of certain goods are liable to tax, even though only at one point, whether of purchase or of sale, a subsequent inter-State sale of the same commodity is liable to tax, but where that commodity is not liable to tax at all if it were an intra-State sale the inter-State sale of that commodity is also exempt from tax. Where an intra-State sale of a particular commodity is taxable at a lower rate than 3 per cent then the tax on the inter-State sale of that commodity will be at that lower rate. A sale or purchase of any goods shall not be exempt from tax in respect of inter-State sales of those commodities if as an intra-State sale the purchase or sale of those commodities is exempt only in specific circumstances or under specified conditions or is leviable on the sale or purchase at specified stages. On this interpretation Section 6 (1A) as well as Section 8 (2A) can stand together.The other attack that the rectification order is beyond the point of time provided in Rule 38 of the Mysore Sales Tax Rules is also without substance. What was sought to be rectified was the assessment order rectified as a consequence of this Courts decision in Yaddalams case, 16 STC 231 = (AIR 1965 SC 1510 ). After such rectification the original assessment order was no longer in force and that was not the order sought to be rectified. It is admitted that all the rectification orders would be within time calculated from the original rectification order. Rule 38 itself speaks of "any order" and there is no doubt that the rectified order is also "any order" which can be rectified under Rule 38.
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Mohd. Idris & Others Vs. Sat Narain | are made partly retrospective and partly not and considerable time is spent in trying to ascertain which part of the original Act survives and to what extent. We are concerned with a number of sections which have undergone changes again and again and we shall now attempt to examine what the position vis a vis the suit pending before the Munsif was, as a result of the enacting of the Abolition Act and its rumerous amendments. 7. This suit was filed on May 27, 1952 when the Abolition Act was not on the statute book. When the Abolition Act was passed it did not repeal the U.P. Agriculturists Relief Act. Both the Acts, therefore, continued on the statute book till July 12, 1958. On that date Act XVI of 1953 was passed. Section 67 of that Act repealed the U. P. Agriculturists Relief Act. While repealing the Act it was not stated whether the repeal was to operate retrospectively or not but by S. 1(2) the amending Act itself was deemed to have come into force from the first day of July, 1952 that is to say, simultaneously with the Abolition Act. It may, therefore, be assumed that the U.P. Agriculturists Relief Act was also repealed retrospectively from July 1, 1952. The question is; whether the right of the plaintiff to continue the suit under the old law was in any way impaired. Section 6 of the U. P. General Clauses Act lays down the effect of repeal and it is stated there as follows:- 6. Effect of repeal, shall Where any Uttar Pradesh Act repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not- * * * * * (c) affect any right, privilege, obligation or liability acquired, accused or incurred under any enactment so repealed; or * * * * * (e) affect any remedy, or any investigation or legal proceeding commenced before the repealing Act shall have come into operation in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such remedy may be enforced and any such investigation or legal proceedings may be continued and concluded; and any such penalty, forfeiture or punishment imposed as if the repealing Act had not been passed. The question is whether a different intention appears in either the Abolition Act or the amending Act XVI of 1953, for otherwise the old proceeding could continue before the Munsif. There is nothing in the Abolition Act which takes away the right of suit in respect of a pending action. If there be any doubt, it is removed when we consider that the U. P. Agriculturists Relief Act was repealed retrospectively from July 1, 1952 only and it is not, therefore, possible to give the repeal further retrospectivity so as to affect a suit pending from before that date. The jurisdiction of the Assistant Collector was itself created from July 1, 1952 and there is no provision in the Abolition Act that pending cases were to stand transferred to the Assistant Collector for disposal. Such provisions are commonly found in a statute which takes away the jurisdiction of one court and confers it on another. From these two circumstances it is to be inferred that if there is at all any expression of intention, it is to keep S. 6 of the General Clauses Act applicable to pending litigation. The doubt, if any be left, is further removed if we consider a later amending Act, namely, Amending Act XVIII of 1956. By that Act Schedule II, which created the jurisdiction of the Assistant Collector in suits for ejectment of asamis was replaced by another Schedule. The entry relating to suits for ejectment of asamis, however, remained the same. But S. 23 of the amending Act of 1956 created a special saving which reads as follows:- 23. Saving.- (i) Any amendment made by this Act shall not affect the validity, invalidity, effect or consequence of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred or any jurisdiction already exercised, and any proceeding instituted or commenced before any court or authority prior to the commencement of this Act shall, notwithstanding any amendment herein made, continue to be heard and decided by such court or authority. (ii) An appeal, review or revision from any suit or proceeding instituted or commenced before any court or authority prior to the commencement of this Act shall, notwithstanding any amendment herein made, lie to the Court or authority to which it would have laid if instituted or commenced before the said commencement. The addition of this section clearly shows that by the conferral of the jurisdiction upon the Assistant Collector it was not intended to upset litigation pending before appropriate authorities when the Abolition Act came into force. Section 23 in terms must apply to the present case, because if it had remained pending before the Munsif till 1956, it is clear, the jurisdiction of the Munsif would not have been ousted. Although it was not pending before the Munsif it was pending before the appellate Court when the 1956 amendment Act was passed. It follows, therefore, that to such a suit the provisions of Schedule II read with S. 200 of the Abolition Act cannot be applied because the Legislature has in 1956 said expressly what was implict before, namely, that pending actions would be governed by the old law as if the new law had not been passed. In our judgment, therefore, the proceedings before the Munsif were with jurisdiction because they were not affected by the passing of the Abolition Act or the amending Act, 1953, regard being had to the provisions of S. 6 of the U.P. General Clauses Act in the first instance and more so in view of the provisions of S. 23 of the amending Act, 1956 which came before the proceedings between the parties had finally terminated. | 0[ds]The question which is raised in this appeal is whether after this was done, the suit which was still pending, could continue before the Munsiff and on the application under the U. P. Agriculturists Relief Act. In support of their case the appellants contended that the ejectment of an assami or a Sirdar can only be under the provisions of the Abolition Act and no other law. The appellants claim to have become asamis by reason of the provisions of the Abolition Act although they had claimed in the High Court and the courts below that they had become Sirdars. We have, therefore, to consider in this appeal what was the status of the representatives of the mortgagor on the one hand and of the mortgagee on the other, and then to decide whether the Munsif was competent to pass the decree for redemption and to order the ejectment of the present appellants. It may be stated at once that we declined to hear arguments on the other pleas of the appellants which have now been concurrently rejected in the first two courtsThe addition of this section clearly shows that by the conferral of the jurisdiction upon the Assistant Collector it was not intended to upset litigation pending before appropriate authorities when the Abolition Act came into force. Section 23 in terms must apply to the present case, because if it had remained pending before the Munsif till 1956, it is clear, the jurisdiction of the Munsif would not have been ousted. Although it was not pending before the Munsif it was pending before the appellate Court when the 1956 amendment Act was passed. It follows, therefore, that to such a suit the provisions of Schedule II read with S. 200 of the Abolition Act cannot be applied because the Legislature has in 1956 said expressly what was implict before, namely, that pending actions would be governed by the old law as if the new law had not been passed. In our judgment, therefore, the proceedings before the Munsif were with jurisdiction because they were not affected by the passing of the Abolition Act or the amending Act, 1953, regard being had to the provisions of S. 6 of the U.P. General Clauses Act in the first instance and more so in view of the provisions of S. 23 of the amending Act, 1956 which came before the proceedings between the parties had finally terminated. | 0 | 2,971 | 437 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
are made partly retrospective and partly not and considerable time is spent in trying to ascertain which part of the original Act survives and to what extent. We are concerned with a number of sections which have undergone changes again and again and we shall now attempt to examine what the position vis a vis the suit pending before the Munsif was, as a result of the enacting of the Abolition Act and its rumerous amendments. 7. This suit was filed on May 27, 1952 when the Abolition Act was not on the statute book. When the Abolition Act was passed it did not repeal the U.P. Agriculturists Relief Act. Both the Acts, therefore, continued on the statute book till July 12, 1958. On that date Act XVI of 1953 was passed. Section 67 of that Act repealed the U. P. Agriculturists Relief Act. While repealing the Act it was not stated whether the repeal was to operate retrospectively or not but by S. 1(2) the amending Act itself was deemed to have come into force from the first day of July, 1952 that is to say, simultaneously with the Abolition Act. It may, therefore, be assumed that the U.P. Agriculturists Relief Act was also repealed retrospectively from July 1, 1952. The question is; whether the right of the plaintiff to continue the suit under the old law was in any way impaired. Section 6 of the U. P. General Clauses Act lays down the effect of repeal and it is stated there as follows:- 6. Effect of repeal, shall Where any Uttar Pradesh Act repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not- * * * * * (c) affect any right, privilege, obligation or liability acquired, accused or incurred under any enactment so repealed; or * * * * * (e) affect any remedy, or any investigation or legal proceeding commenced before the repealing Act shall have come into operation in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such remedy may be enforced and any such investigation or legal proceedings may be continued and concluded; and any such penalty, forfeiture or punishment imposed as if the repealing Act had not been passed. The question is whether a different intention appears in either the Abolition Act or the amending Act XVI of 1953, for otherwise the old proceeding could continue before the Munsif. There is nothing in the Abolition Act which takes away the right of suit in respect of a pending action. If there be any doubt, it is removed when we consider that the U. P. Agriculturists Relief Act was repealed retrospectively from July 1, 1952 only and it is not, therefore, possible to give the repeal further retrospectivity so as to affect a suit pending from before that date. The jurisdiction of the Assistant Collector was itself created from July 1, 1952 and there is no provision in the Abolition Act that pending cases were to stand transferred to the Assistant Collector for disposal. Such provisions are commonly found in a statute which takes away the jurisdiction of one court and confers it on another. From these two circumstances it is to be inferred that if there is at all any expression of intention, it is to keep S. 6 of the General Clauses Act applicable to pending litigation. The doubt, if any be left, is further removed if we consider a later amending Act, namely, Amending Act XVIII of 1956. By that Act Schedule II, which created the jurisdiction of the Assistant Collector in suits for ejectment of asamis was replaced by another Schedule. The entry relating to suits for ejectment of asamis, however, remained the same. But S. 23 of the amending Act of 1956 created a special saving which reads as follows:- 23. Saving.- (i) Any amendment made by this Act shall not affect the validity, invalidity, effect or consequence of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred or any jurisdiction already exercised, and any proceeding instituted or commenced before any court or authority prior to the commencement of this Act shall, notwithstanding any amendment herein made, continue to be heard and decided by such court or authority. (ii) An appeal, review or revision from any suit or proceeding instituted or commenced before any court or authority prior to the commencement of this Act shall, notwithstanding any amendment herein made, lie to the Court or authority to which it would have laid if instituted or commenced before the said commencement. The addition of this section clearly shows that by the conferral of the jurisdiction upon the Assistant Collector it was not intended to upset litigation pending before appropriate authorities when the Abolition Act came into force. Section 23 in terms must apply to the present case, because if it had remained pending before the Munsif till 1956, it is clear, the jurisdiction of the Munsif would not have been ousted. Although it was not pending before the Munsif it was pending before the appellate Court when the 1956 amendment Act was passed. It follows, therefore, that to such a suit the provisions of Schedule II read with S. 200 of the Abolition Act cannot be applied because the Legislature has in 1956 said expressly what was implict before, namely, that pending actions would be governed by the old law as if the new law had not been passed. In our judgment, therefore, the proceedings before the Munsif were with jurisdiction because they were not affected by the passing of the Abolition Act or the amending Act, 1953, regard being had to the provisions of S. 6 of the U.P. General Clauses Act in the first instance and more so in view of the provisions of S. 23 of the amending Act, 1956 which came before the proceedings between the parties had finally terminated.
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### Explanation:
The question which is raised in this appeal is whether after this was done, the suit which was still pending, could continue before the Munsiff and on the application under the U. P. Agriculturists Relief Act. In support of their case the appellants contended that the ejectment of an assami or a Sirdar can only be under the provisions of the Abolition Act and no other law. The appellants claim to have become asamis by reason of the provisions of the Abolition Act although they had claimed in the High Court and the courts below that they had become Sirdars. We have, therefore, to consider in this appeal what was the status of the representatives of the mortgagor on the one hand and of the mortgagee on the other, and then to decide whether the Munsif was competent to pass the decree for redemption and to order the ejectment of the present appellants. It may be stated at once that we declined to hear arguments on the other pleas of the appellants which have now been concurrently rejected in the first two courtsThe addition of this section clearly shows that by the conferral of the jurisdiction upon the Assistant Collector it was not intended to upset litigation pending before appropriate authorities when the Abolition Act came into force. Section 23 in terms must apply to the present case, because if it had remained pending before the Munsif till 1956, it is clear, the jurisdiction of the Munsif would not have been ousted. Although it was not pending before the Munsif it was pending before the appellate Court when the 1956 amendment Act was passed. It follows, therefore, that to such a suit the provisions of Schedule II read with S. 200 of the Abolition Act cannot be applied because the Legislature has in 1956 said expressly what was implict before, namely, that pending actions would be governed by the old law as if the new law had not been passed. In our judgment, therefore, the proceedings before the Munsif were with jurisdiction because they were not affected by the passing of the Abolition Act or the amending Act, 1953, regard being had to the provisions of S. 6 of the U.P. General Clauses Act in the first instance and more so in view of the provisions of S. 23 of the amending Act, 1956 which came before the proceedings between the parties had finally terminated.
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Commissioner of Income Tax, U.P., and Others Vs. Mohanlal Kedarnath (Decd., By Legal Representatives) | HEGDE J.1. This appeal by certificate arises from the decision of the Allahabad High Court in Civil Misc. Writ Petition No. 228 of 1962. The assessee was assessed to income-tax for the assessment year 1959-60. He claimed a loss of Rs. 37, 306 on account of speculation in gold, silver, etc., and urged that the said speculative loss should be deducted from his other business income. The Income-tax Officer rejected that claim. The order of the Income-tax Officer was upheld by the Appellate Assistant Commissioner. Thereupon, the assessee filed a revision petition before the Commissioner under section 33A of the Indian Income-tax Act, 1922. By an order, dated September 21, 1961, his revision petition was dismissed. The assessee challenged that order by means of a writ petition as mentioned earlier. The High Court following its decision in Jagannath Mahadeo Prasad v. Commissioner of Income-tax, allowed the writ petition and quashed the assessment order. This appeal has been brought against that decision. The decision in Jagannath Mahadeo Prasad has now been overruled by the decision of this court in Commissioner of Income-tax v. Jagannath Mahadeo Prasad. In view of that decision this appeal has to be allowed and it is ordered accordingly. 2. | 0[ds]The decision in Jagannath Mahadeo Prasad has now been overruled by the decision of this court in Commissioner ofv. Jagannath Mahadeo Prasad. In view of that decision this appeal has to be allowed and it is ordered accordingly | 0 | 229 | 44 | ### 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:
HEGDE J.1. This appeal by certificate arises from the decision of the Allahabad High Court in Civil Misc. Writ Petition No. 228 of 1962. The assessee was assessed to income-tax for the assessment year 1959-60. He claimed a loss of Rs. 37, 306 on account of speculation in gold, silver, etc., and urged that the said speculative loss should be deducted from his other business income. The Income-tax Officer rejected that claim. The order of the Income-tax Officer was upheld by the Appellate Assistant Commissioner. Thereupon, the assessee filed a revision petition before the Commissioner under section 33A of the Indian Income-tax Act, 1922. By an order, dated September 21, 1961, his revision petition was dismissed. The assessee challenged that order by means of a writ petition as mentioned earlier. The High Court following its decision in Jagannath Mahadeo Prasad v. Commissioner of Income-tax, allowed the writ petition and quashed the assessment order. This appeal has been brought against that decision. The decision in Jagannath Mahadeo Prasad has now been overruled by the decision of this court in Commissioner of Income-tax v. Jagannath Mahadeo Prasad. In view of that decision this appeal has to be allowed and it is ordered accordingly. 2.
### Response:
0
### Explanation:
The decision in Jagannath Mahadeo Prasad has now been overruled by the decision of this court in Commissioner ofv. Jagannath Mahadeo Prasad. In view of that decision this appeal has to be allowed and it is ordered accordingly
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GEETABEN ANILKUMAR PATEL AND ORS Vs. PRAVINCHANDRA JINABHAI PATEL AND ORS | honestly, wholeheartedly and faithfully act in accordance with and implement the transaction of the property, the IMOU which is now considered as MOU and the accounting chart in respect of the companies and the firms. ........ The aforesaid Arbitration Award I agreed to and approved of by and our descendant guardian and heirs. We undertake to implement the same with free-will and pleasure. After their signature in the award which is in Gujarati language for having received the copy of the award, Pravinchandra Patel and Anilkumar Patel have stated as under:- ....For ourselves and on behalf of our family members. It is pertinent to note that the award also referred to IMOU dated29.06.1996 in and by which the members of the respective families have authorized Pravinchandra Patel and Anilkumar Patel to act on behalf of their family members. 22. The award dated 03.11.1996 also refers to the award dated07.07.1996. The award dated 03.11.1996 was also signed by Pravinchandra Patel and Anilkumar Patel and both of them have undertaken that the arbitration award is duly agreed and approved by them and their family members and further undertaken to act in accordance with the award and to give effect to the same. The said endorsement in the award dated 03.11.1996 reads as under:- The aforesaid arbitration award is duly agreed to and approved of by me and my family members, descendants heirs and other. My family members and I absolutely assure to act in accordance with the award and to give effect to same. As discussed earlier, Anilkumar Patel was unsuccessful in his attempt to challenge the award dated 03.11.1996 which has attained finality in terms of the findings in W.P.No.7614 of 2006. Anilkumar Patels undertaking in the award dated 03.11.1996 that he and his family members agreed and approved the award shows that Anilkumar Patel was acting for himself and on behalf of his family members. 23. Award dated 07.07.1996 was received by Anilkumar Patel for himself and on behalf of his family members. In interim MOU dated 29.06.1996, Anilkumar Patel signed for self and as a power of attorney holder for his wife and his all sons and daughter-in-law. Challenging the award dated 07.07.1996, Anilkumar Patel and his family members have filed a single petition under Section 34 of the Act. Likewise they have also filed a single petition for amending the arbitration petition No.202 of2005. Anilkumar Patel, being the head of his family, was a person directly connected with and involved in the proceeding and was also in control of the proceeding. Being head of the family, Anilkumar Patel would have been the best person to understand and appreciate the arbitral award and take a decision as to whether an application under Section 34 of the Act was required to be filed or not. In such facts and circumstances, in our considered view, service of arbitral award on Anilkumar Patel amounts to service on the other appellant Nos.1(a) to 1(d) and respondent No.10 and they cannot plead non-compliance of Section 31(5) of the Act. 24. The High Court has enumerated various circumstances which indicate that Anilkumar Patel was well aware of the award dated07.07.1996 and also relied upon the award in internal communication between the parties and various legal proceedings. Inter Office Memo dated 22.07.1996, sent by Anilkumar Patel to Pravinchandra Patel, seeking for delivery of file of Gat No.266/2 of Bambhori, Taluka Brandol. Anilkumar Patel has stated that in Gat No.266/2 of Bambhori, agricultural land has come to his share and since some dispute has been raised by the party by whom the sale-deed is to be executed, Anilkumar Patel requested to handover the file maintained in connection with the agricultural land mentioned in Gat No.266/2. The said Inter Office Memo clearly shows that even on 22.07.1996, Anilkumar Patel had acted upon the award dated 07.07.1996. 25. Central Bank of India has filed recovery proceeding in O.A.No.298-A/2001 against Pravinchandra Patel, M/s. Patel Narayandas Bhagwandas Fertilizers Private Limited and others. In the said proceeding before DRT, Anilkumar Patel has referred to the arbitration award passed in July, 1996 and that he has no interest in M/s. Patel Narayandas Bhagwandas Fertilizers Private Limited. Based on such stand taken by Anilkumar Patel in O.A.No.298-A/2001, DRT observed that Anilkumar Patel had resigned from the Directorship of the said company and exonerated him from the liability to the bank and dismissed O.A.No.298-A/2001 against Anilkumar Patel and Atulkumar Maganlal Patel. The High Court referred to the said DRT proceedings and various other circumstances in which Anilkumar Patel had taken advantage of arbitration award and the High Court held as under:- ....The respondents, obviously, wherever it was possible for them, at several places, took advantage of the arbitration award and now since obligation on their part is to be complied in favour of the petitioner, have started challenging the award, after nine years..... Various circumstances brought on record clearly show that Anilkumar Patel was authorized by other appellant Nos. 1(a) to 1(d) and respondent No.10 to receive copy of the award and act on their behalf and we find no reason to take a different view from that of the High Court. 26. As rightly observed by the High Court, Anilkumar Patel has gone to the extent of even disputing his signature in the award dated07.07.1996 by drafting choreographed petition. Having accepted the award through Anilkumar Patel, being the head of the family, appellant Nos. 1(a) to 1(d) and respondent No.10 cannot turn round and contend that they had not received the copy of the award. The High Court rightly held that ....Receiving the copy by Anilkumar on behalf of himself and respondent nos. 2 to 6, under an acknowledgment, is in terms of compliance of Section 31(5) of the Act and Section 34(3) thereof..... and that the application filed under Section 34 of the Act by Anilkumar Patel and appellant Nos. 1(a) to 1(d) and respondent No.10 was barred by limitation. We do not find any good ground to interfere with the impugned judgment. | 0[ds]23. Award dated 07.07.1996 was received by Anilkumar Patel for himself and on behalf of his family members. In interim MOU dated 29.06.1996, Anilkumar Patel signed for self and as a power of attorney holder for his wife and his all sons and. Challenging the award dated 07.07.1996, Anilkumar Patel and his family members have filed a single petition under Section 34 of the Act. Likewise they have also filed a single petition for amending the arbitration petition No.202 of2005. Anilkumar Patel, being the head of his family, was a person directly connected with and involved in the proceeding and was also in control of the proceeding. Being head of the family, Anilkumar Patel would have been the best person to understand and appreciate the arbitral award and take a decision as to whether an application under Section 34 of the Act was required to be filed or not. In such facts and circumstances, in our considered view, service of arbitral award on Anilkumar Patel amounts to service on the other appellant Nos.1(a) to 1(d) and respondent No.10 and they cannot pleade of Section 31(5) of the Act26. As rightly observed by the High Court, Anilkumar Patel has gone to the extent of even disputing his signature in the award dated07.07.1996 by drafting choreographed petition. Having accepted the award through Anilkumar Patel, being the head of the family, appellant Nos. 1(a) to 1(d) and respondent No.10 cannot turn round and contend that they had not received the copy of the award. The High Court rightly held that ....Receiving the copy by Anilkumar on behalf of himself and respondent nos. 2 to 6, under an acknowledgment, is in terms ofe of Section 31(5) of the Actand Section 34(3) thereof..... and that the application filed under Section 34 of the Act by Anilkumar Patel and appellant Nos. 1(a) to 1(d) and respondent No.10 was barred by limitation. We do not find any good ground to interfere with the impugned judgment24. The High Court has enumerated various circumstances which indicate that Anilkumar Patel was well aware of the award dated07.07.1996 and also relied upon the award in internal communication between the parties and various legal proceedings. Inter Office Memo dated 22.07.1996, sent by Anilkumar Patel to Pravinchandra Patel, seeking for delivery of file of Gat No.266/2 of Bambhori, Taluka Brandol. Anilkumar Patel has stated that in Gat No.266/2 of Bambhori, agricultural land has come to his share and since some dispute has been raised by the party by whom thed is to be executed, Anilkumar Patel requested to handover the file maintained in connection with the agricultural land mentioned in Gat No.266/2. The said Inter Office Memo clearly shows that even on 22.07.1996, Anilkumar Patel had acted upon the award dated 07.07.1996Various circumstances brought on record clearly show that Anilkumar Patel was authorized by other appellant Nos. 1(a) to 1(d) and respondent No.10 to receive copy of the award and act on their behalf and we find no reason to take a different view from that of the High Court. | 0 | 4,469 | 586 | ### 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:
honestly, wholeheartedly and faithfully act in accordance with and implement the transaction of the property, the IMOU which is now considered as MOU and the accounting chart in respect of the companies and the firms. ........ The aforesaid Arbitration Award I agreed to and approved of by and our descendant guardian and heirs. We undertake to implement the same with free-will and pleasure. After their signature in the award which is in Gujarati language for having received the copy of the award, Pravinchandra Patel and Anilkumar Patel have stated as under:- ....For ourselves and on behalf of our family members. It is pertinent to note that the award also referred to IMOU dated29.06.1996 in and by which the members of the respective families have authorized Pravinchandra Patel and Anilkumar Patel to act on behalf of their family members. 22. The award dated 03.11.1996 also refers to the award dated07.07.1996. The award dated 03.11.1996 was also signed by Pravinchandra Patel and Anilkumar Patel and both of them have undertaken that the arbitration award is duly agreed and approved by them and their family members and further undertaken to act in accordance with the award and to give effect to the same. The said endorsement in the award dated 03.11.1996 reads as under:- The aforesaid arbitration award is duly agreed to and approved of by me and my family members, descendants heirs and other. My family members and I absolutely assure to act in accordance with the award and to give effect to same. As discussed earlier, Anilkumar Patel was unsuccessful in his attempt to challenge the award dated 03.11.1996 which has attained finality in terms of the findings in W.P.No.7614 of 2006. Anilkumar Patels undertaking in the award dated 03.11.1996 that he and his family members agreed and approved the award shows that Anilkumar Patel was acting for himself and on behalf of his family members. 23. Award dated 07.07.1996 was received by Anilkumar Patel for himself and on behalf of his family members. In interim MOU dated 29.06.1996, Anilkumar Patel signed for self and as a power of attorney holder for his wife and his all sons and daughter-in-law. Challenging the award dated 07.07.1996, Anilkumar Patel and his family members have filed a single petition under Section 34 of the Act. Likewise they have also filed a single petition for amending the arbitration petition No.202 of2005. Anilkumar Patel, being the head of his family, was a person directly connected with and involved in the proceeding and was also in control of the proceeding. Being head of the family, Anilkumar Patel would have been the best person to understand and appreciate the arbitral award and take a decision as to whether an application under Section 34 of the Act was required to be filed or not. In such facts and circumstances, in our considered view, service of arbitral award on Anilkumar Patel amounts to service on the other appellant Nos.1(a) to 1(d) and respondent No.10 and they cannot plead non-compliance of Section 31(5) of the Act. 24. The High Court has enumerated various circumstances which indicate that Anilkumar Patel was well aware of the award dated07.07.1996 and also relied upon the award in internal communication between the parties and various legal proceedings. Inter Office Memo dated 22.07.1996, sent by Anilkumar Patel to Pravinchandra Patel, seeking for delivery of file of Gat No.266/2 of Bambhori, Taluka Brandol. Anilkumar Patel has stated that in Gat No.266/2 of Bambhori, agricultural land has come to his share and since some dispute has been raised by the party by whom the sale-deed is to be executed, Anilkumar Patel requested to handover the file maintained in connection with the agricultural land mentioned in Gat No.266/2. The said Inter Office Memo clearly shows that even on 22.07.1996, Anilkumar Patel had acted upon the award dated 07.07.1996. 25. Central Bank of India has filed recovery proceeding in O.A.No.298-A/2001 against Pravinchandra Patel, M/s. Patel Narayandas Bhagwandas Fertilizers Private Limited and others. In the said proceeding before DRT, Anilkumar Patel has referred to the arbitration award passed in July, 1996 and that he has no interest in M/s. Patel Narayandas Bhagwandas Fertilizers Private Limited. Based on such stand taken by Anilkumar Patel in O.A.No.298-A/2001, DRT observed that Anilkumar Patel had resigned from the Directorship of the said company and exonerated him from the liability to the bank and dismissed O.A.No.298-A/2001 against Anilkumar Patel and Atulkumar Maganlal Patel. The High Court referred to the said DRT proceedings and various other circumstances in which Anilkumar Patel had taken advantage of arbitration award and the High Court held as under:- ....The respondents, obviously, wherever it was possible for them, at several places, took advantage of the arbitration award and now since obligation on their part is to be complied in favour of the petitioner, have started challenging the award, after nine years..... Various circumstances brought on record clearly show that Anilkumar Patel was authorized by other appellant Nos. 1(a) to 1(d) and respondent No.10 to receive copy of the award and act on their behalf and we find no reason to take a different view from that of the High Court. 26. As rightly observed by the High Court, Anilkumar Patel has gone to the extent of even disputing his signature in the award dated07.07.1996 by drafting choreographed petition. Having accepted the award through Anilkumar Patel, being the head of the family, appellant Nos. 1(a) to 1(d) and respondent No.10 cannot turn round and contend that they had not received the copy of the award. The High Court rightly held that ....Receiving the copy by Anilkumar on behalf of himself and respondent nos. 2 to 6, under an acknowledgment, is in terms of compliance of Section 31(5) of the Act and Section 34(3) thereof..... and that the application filed under Section 34 of the Act by Anilkumar Patel and appellant Nos. 1(a) to 1(d) and respondent No.10 was barred by limitation. We do not find any good ground to interfere with the impugned judgment.
### Response:
0
### Explanation:
23. Award dated 07.07.1996 was received by Anilkumar Patel for himself and on behalf of his family members. In interim MOU dated 29.06.1996, Anilkumar Patel signed for self and as a power of attorney holder for his wife and his all sons and. Challenging the award dated 07.07.1996, Anilkumar Patel and his family members have filed a single petition under Section 34 of the Act. Likewise they have also filed a single petition for amending the arbitration petition No.202 of2005. Anilkumar Patel, being the head of his family, was a person directly connected with and involved in the proceeding and was also in control of the proceeding. Being head of the family, Anilkumar Patel would have been the best person to understand and appreciate the arbitral award and take a decision as to whether an application under Section 34 of the Act was required to be filed or not. In such facts and circumstances, in our considered view, service of arbitral award on Anilkumar Patel amounts to service on the other appellant Nos.1(a) to 1(d) and respondent No.10 and they cannot pleade of Section 31(5) of the Act26. As rightly observed by the High Court, Anilkumar Patel has gone to the extent of even disputing his signature in the award dated07.07.1996 by drafting choreographed petition. Having accepted the award through Anilkumar Patel, being the head of the family, appellant Nos. 1(a) to 1(d) and respondent No.10 cannot turn round and contend that they had not received the copy of the award. The High Court rightly held that ....Receiving the copy by Anilkumar on behalf of himself and respondent nos. 2 to 6, under an acknowledgment, is in terms ofe of Section 31(5) of the Actand Section 34(3) thereof..... and that the application filed under Section 34 of the Act by Anilkumar Patel and appellant Nos. 1(a) to 1(d) and respondent No.10 was barred by limitation. We do not find any good ground to interfere with the impugned judgment24. The High Court has enumerated various circumstances which indicate that Anilkumar Patel was well aware of the award dated07.07.1996 and also relied upon the award in internal communication between the parties and various legal proceedings. Inter Office Memo dated 22.07.1996, sent by Anilkumar Patel to Pravinchandra Patel, seeking for delivery of file of Gat No.266/2 of Bambhori, Taluka Brandol. Anilkumar Patel has stated that in Gat No.266/2 of Bambhori, agricultural land has come to his share and since some dispute has been raised by the party by whom thed is to be executed, Anilkumar Patel requested to handover the file maintained in connection with the agricultural land mentioned in Gat No.266/2. The said Inter Office Memo clearly shows that even on 22.07.1996, Anilkumar Patel had acted upon the award dated 07.07.1996Various circumstances brought on record clearly show that Anilkumar Patel was authorized by other appellant Nos. 1(a) to 1(d) and respondent No.10 to receive copy of the award and act on their behalf and we find no reason to take a different view from that of the High Court.
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State Of Mahrashtra Vs. Fazal Rehman Abdul | to as ‘CBI’) and on conclusion of the investigation, a chargesheet was filed against a large number of accused persons. Out of the accused persons against whom chargesheet was filed, 40 accused could not be put to trial as they have been absconding. Thus, the Designated Court under TADA framed charges against 138 accused persons. During the trial, 11 accused died and 2 accused turned hostile. Further the Designated Court discharged 2 accused during trial and the remaining persons including respondent (A-76) stood convicted.C. The respondent had been charged for general conspiracy which is framed against all the accused persons for the offences punishable under Section 3(3) TADA and Section 120-B of Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA and read with Sections 302, 307,326,324,427,435,436, 201 and 212 IPC and offences under Sections 3 and 7 read with Sections 25 (I-A), (l-B)(a) of the Arms Act, 1959, Sections 9-B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984.D. In addition, the respondent had been charged for persuading his brother-in-law Firoz Amani Malik (A-39) to undergo weapons’ training in Pakistan and keeping in his possession 4 handgrenades brought to him by Firoz Amani Malik (A-39) and for handing over the same to Mohd. Jabir (A-93-dead), showing that the same had been smuggled into India for committing terrorist activities.E. The Designated Court after conclusion of the trial acquitted the respondent of all the charges.Hence, this appeal. 3. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that the respondent had been responsible to send the co-accused to Dubai, and further to Pakistan to have training for handling the arms, ammunition and explosives, and therefore, his acquittal for all the charges is liable to be reversed. 4. On the contrary, learned counsel appearing for the respondent has submitted that the co-accused (A-39), who was brother-in-law of respondent himself, had not been aware of the purpose for which he had been taken to Dubai. The respondent cannot be held responsible for sending Firoz (A-39) for any criminal activity. Thus, the well- reasoned judgment of the Special Judge does not require interference. 5. We have considered the rival submissions made by learned counsel for the parties and perused the record. There is no confession by the respondent accused (A-76). 6. Confessional statement of Firoz @ Akram Amani Malik (A-39) revealed that the said respondent was the brother-in-law of Firoz @ Akram Amani Malik (A-39). The said accused Firoz @ Akram Amani Malik (A-39) had been awarded the death sentence in this very case and his appeal is being heard alongwith this case. Respondent (A-76) used to advise the said accused (A-39) to go to Dubai and the said accused also expressed his willingness and desire to go to Dubai in the month of January, 1993. He (A-39) got a passport and went to Dubai with Miyaz. After getting a visa they left the airport. One person named Ayub Bhai took them to a building near Kadar Hotel. There they found another person Nasim who took them to a flat on the 2nd floor. Nasim told him there that he would be going to Pakistan and his purpose for this visit would be explained later. 7. Prakash Khanvilkar (PW-513), deposed about the recovery of handgrenades from Mohmed Jabir Abdul Latif Mansoor (A-93). However, he does not make any reference so far as the respondent Fazal Rehman Abdul Khan (A-76) is concerned. 8. The Designated Court after appreciating the entire evidence came to the conclusion that there was nothing on record to show that the respondent though facilitated sending Firoz @ Akram Amani Malik (A-39) to Dubai, had any knowledge of the purpose of going to Dubai or Pakistan for the simple reason that Firoz @ Akram Amani Malik (A-39) himself disclosed that he was told in Dubai that he would go to Pakistan and the purpose for going there would be explained to him later on. The confessional statement of A-39 did not reveal the involvement of the respondent in persuading A-39 to undergo weapons’ training in Pakistan.9. This Court has laid down parameters for interference against the order of acquittal time and again. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject- matter of scrutiny by the appellate court. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial courts acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. 10. | 0[ds]The Designated Court after appreciating the entire evidence came to the conclusion that there was nothing on record to show that the respondent though facilitated sending Firoz @ Akram Amani Malik (A-39) to Dubai, had any knowledge of the purpose of going to Dubai or Pakistan for the simple reason that Firoz @ Akram Amani Malik (A-39) himself disclosed that he was told in Dubai that he would go to Pakistan and the purpose for going there would be explained to him later on. The confessional statement of A-39 did not reveal the involvement of the respondent in persuading A-39 to undergotraining in Pakistan.9. This Court has laid down parameters for interference against the order of acquittal time and again. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject- matter of scrutiny by the appellate court. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial courts acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it isthe weight ofor if the finding so outrageously defies logic as to suffer from the vice ofDesignated Court after appreciating the entire evidence has drawn a conclusion that the respondents may be under the impression that they were being sent there for training of arms so that it can be used in self defence and they came to know only when they were in Dubai that they were being sent for training to Pakistan. However, the training could not be finalized/arranged and they came back to Bombay. Therefore, the learned Designated Court had drawn the inference that as they did not have knowledge that they were going to Pakistan for training in handling of arms they could not be held guilty.25. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to behave gone through the entire record and we are of the view that none of the respondents was aware of the intention of the conspirators to send the respondents to Pakistan for training to deal with the arms and ammunition rather they had been taken away to Dubai on false pretext and had beenthe evidence of all the witnesses is read conjointly, it becomes evident that none of the witnesses had named either of the respondents. The other persons of the police team who had been named stood convicted. The respondents have been acquitted on the ground that in absence of Test Identification Parade or their identification by any of the witnesses/accused in the court, it was not safe to make a guess work that they or either of them could also be member(s) of the said police team which intercepted the contraband. The evidence on record reveal that police team headed by Inspector Patil was having 6-7 constables. There is nothing on record on the basis of which it could be assumed that the respondents were the members of the said team. It iscase that the total strength of the Shrivardhan Police Station was 7 or 8, so it can be presumed that all except one or two might have come. The Sarpanchas of 7 villages in close proximity, deposed in court to falsify the alibi taken by the respondents that they were on police patrolling in their villages. Statements made by the Sarpanchas that none of the respondents had visited their village on patrolling cannot be a proof that the respondents were members of the team, which intercepted the said trucks.37. The learned Designated Court dealt with the issue elaborately and came to the conclusion that there was no material to connect the respondents with the aforesaid incident and it was not safe to presume that the respondents were also the members of the police team which intercepted the said trucks carrying contraband.38. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to bethe present case, admittedly Rule 15(3)(b) has not been complied. No memorandum as required was made. There is also no contemporaneous record to show the satisfaction of the recording officer after writing of confession that the confession has been voluntarily made. The confession of Accused 7 does not even state that it was read over to him. Thus, the confessional statements are inadmissible and cannot be made the basis of upholding the conviction. Once confessional statements are excluded the conviction cannot be sustained.The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.52. In view of the above, we are of the considered opinion that the learned Designated Court rightly rejected the confessional statement made by the respondent and the co-accused as the first part of these statements has not been recorded in consonance with the requirement of statutoryDesignated Court has acquitted the respondent (A-38) of the said charges only on the ground that the truck was owned by Hasan Adhikari and the prosecution did not consider it proper to make Hasan Adhikari as an accused or as a witness to find out as to whether the respondent (A-38) had been a regular driver with him and as to whether on that particular date he was on duty. No person had identified him as he was driving the said vehicle on the said date. The confessional statement of Tulsi Ram Dhondu Surve (A-62) was not corroborated by any other witness/accused.62. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to bein the second part of the confession which was recorded on 4.5.1993 the respondent had not been warned that he was not bound to make the confession. Though he was asked as to whether he was making the statement under any pressure and whether he was willing to make the confession but even then he was not warned that he was not bound to make the statement. The certificate issued by the officer regarding the confessional statement mentions the belief of the recording officer that the statement was signed of his own will.73. Exactly the same is the position so far as the confessional statements of co-accused Ahmed Shah Khan Durrani (A-20) and Aziz Ahmed Mohd. Ahmed Shaikh (A-21) are concerned.74. The Designated Court has discarded the confessional statements as the same was not in accordance with the said provisions. We concur with the finding of the Designated Court in view of the law laid down by this court in S.N. Dube (supra), where it was held that the compliance of Section 15 and Rule 15 of TADA, 1987 is mandatory. [Vide: Lal Singh (supra) and Bharatbhai (supra)].75. As there is no admissible evidence on record connecting the respondent (A-80) to the crime, he has rightly been acquitted by the courtThe parameters laid by this Court in entertaining the appeal against the order of acquittal have to be applied.86. The only allegation against the respondent had been that she had accompanied her hushand (AA) while he carried the arms, ammunition and explosives. Further, there is nothing on record to show that she had any knowledge of such arms, and the purpose for which the same had been brought. Further, the sister-in-law of the respondent was neither made the accused nor a witness. Her husband is still absconding. In such a fact-situation, the findings recorded by the learned Designated Court do not warrant anyappreciating the aforesaid evidence the Special Judge came to the conclusion that the respondent (A-105) had not made any confession. So far as the confession of Faki Ali Faki Chacha (A-74) is concerned, it contained reference regarding the presence of one father, but the same does not specifically reveal A-105 being person while the goods were being concealed after taking them from the house of the respondent-accused to the mango grove. The same conclusion was drawn regarding the confession of Jananrdan Pandurang Gambas (A-81). He (A- 81) made a passing remark revealing the presence of respondent A-105 at the relevant time. Still the same specifically failed to depict any act committed by him in relation with the contraband goods. More so, there seems to be some contradiction and variance in the sequence of events as given in the aforesaid confessions. Thus, it was difficult to accept that the said material in confession of the co-accused can be accepted without there being any independent corroboration, though the corroboration was required only on material points and not on each and every point. The confessional statement of the aforesaid accused particularly Faki Ali Faki Chacha (A-74) and Jananrdan Pandurang Gambas (A-81) cannot be said to be cogent enough for establishing involvement of the respondent (A-105) in commission of the acts amounting to a criminal offence required to be strictly proved.97. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.98. In the instant case, there is no evidence on record to show that the respondent had been involved in the crime in any manner. If his sons had indulged in the offence, his mere presence in his house, where the contraband had been hidden, would not make the respondentSpecial Judge has given benefit of doubt to the respondent (A-132) reaching the conclusion that the prosecution failed to disclose the correct identity of the accused. None of the witness/accused had referred to his full name or address even once. In such a fact-situation, the Special Judge has rightly given him the benefit of doubt.110. In the facts and circumstances of the case, as the prosecution failed to fix the identity of the accused who had gone to Pakistan for training, we are of the opinion that the respondent has rightly been given the benefit of doubt.111. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to beDesignated Court after appreciating the entire evidence on record came to the followingwith regard to submission canvassed on behalf of A-27 and after carefully considering the material in his confession and the same having shown the manner in which he had acted in episode it is crystal clear that he was full aware that he was involved in an illegal operation. Having regard to same and so also having regard to the amount received by him it will be difficult to perceive that he was not aware that he was effecting any illegal operation. Now considering the acts committed by him clearly denotes of himself having transported the goods brought into the country at a p lace which was not a port and all the facts regarding the said operation the same are sufficient to denote of the same being a smuggling operation. However, there being no express evidence of A-27 having seen the nature of goods transported and the evidence having indicated that he cannot be said to be a person present at Wangni tower when the exchange of material from vehicles to another vehicle was effected for concealing the same in cavity and the person from Bombay being only present along with Tiger Memon and A-14 & A-17 his liability would be restricted for commission of offences under Customs Act he would be required to be held guilty only for commission of offence under Section 111 r/w Section 135(b) of Customs Act and would be required to be held not guilty for commission of other offences including that of conspiracy in view of his acts being not of a nature for coming to the conclusion of the same being for furthering the object of conspiracy of or involvement of A-27 in the(Emphasis added)124. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.125. There is no evidence on record to show that the respondent had any knowledge about the nature of the articles smuggled inparameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.137. There is no evidence on record to show that the respondent had any knowledge about the nature of the articles smuggled in India. In view thereof, we agree with the reasoning given by the Special Judge.Special Judge recorded the finding that the respondent did not do anything to further the object of conspiracy. However, landing was not of silver and gold, but of arms, ammunition and explosives. The respondent was fully aware of the nature of the smuggled articles and also the purpose for which the contraband goods had been smuggled into India. Even after having such a knowledge, his close association with Tiger Memon (AA) confirmed and he participated and facilitated the transportation of the said articles.In such a fact-situation, the Special Judge was not justified in acquitting the respondent (A-17) of the charge ofparameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.189. From the confessional statement made by the accused it can be ascertained that he (A-24) was aware of the arms and ammunition being landed. He stated that he was given arms and further, was told to sit on alert. He also stated that Tiger Memon (AA) even taught him how to use handgrenades and also paid him for his services. He was also later contacted by co-accused for the disposal of 59 packets stored in a godown and was paid Rs. 5 lakhs for the same. He further revealed that the contraband used in the Bombay Blast of 12.3.1993, was the same as had been landed by him and other co-accused at Shrivardhan. Co-accused Imtiyaz (A-15), Noor Mohammed (A-50), Nasir Dhakla (A-64), Tulsi Ram (A- 62) Dawood Yusuf (A-91), Shahnawaz (A-29) and Ethesham (A-58) have corroborated the knowledge of the respondent and the fact that he was present when the landing was takinginvolvement and participation of Munna (A-24) was throughout the main conspiracy. The order of the learned Designated Court acquitting him on the charge of larger conspiracy is perverse, in view of the evidence on record. Therefore, conspiracy stands proved.With regard to argument canvassed that material in above referred confession or that of witnesses pertaining to events which had occurred at Wangni Tower not disclosing any positive overt act on part of A-55 or that at time of exchange of goods he was not at Wangni Tower or that he was only travelling on motor cycle etc. and as such himself being involved by Investigating Agency in case only because he is son of A-14 does not appeal to mind after considering in proper perceptive relevant material. Even accepting that A-55 was then moving on motor cycle still considering time of dead night at which he was doing so, place at which he was moving etc. clearly shows falsity of all said submissions after considering material in entirety disclosing acts committed by A-55. The same considered upon earlier acts of A-55 in concealment of weapons at his house in absence of his father etc. his participation in going to house of A- 42 as disclosed by aforesaid material clearly repels all said submission.However, even carefully considering all material/evidence available against A-55 and same having not transcended beyond acts committed by him in facilitating Dighi landing and/or transportation of goods smuggled and same failing to disclose any material showing his nexus with conspiracy for which he is charged with or conspiracy for which his father A-14 held to be guilty it will be extremely difficult to accept that his guilt for same can be said to have been established by prosecution only on basis of his guilt found to be established for commission of offence u/sec.3 (3) of TADAIn light of discussion made hereinabove Point Nos. 170 to 173 will be required to be answered in consonance with the conclusion arrived during the said discussion i.e. A-72 having committed all the said offences for which the said points are framed but for the reasons stated hereinabove. However, hardly there being any evidence of A-72 of having committed the said offence in pursuance of conspiracy for which he has been charged due to nexus of material found with him being not established with the material smuggled for commission of Serial bomb Blast and there being no other evidence he will be required to be absolved from the offence of conspiracy for which he is charged(Emphasis added)212. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.213. From the above discussion it is evident that Baba Chauhan (A-41) had given 20 hand grenades to one Ayub resident of Oshiwara. However, he has also disclosed that after his arrest on 28th March, 1993, the said contraband had been produced before the police by his father through HajiDesignated Court, after appreciating the entire evidence on record with respect to Nizammudin Qureshi, has recorded the followingsaid evidence considered in proper perspective clearly reveals close association of A-135 with Tiger Memon and/or himself man of confidence of Tiger Memon. All said evidence considered in proper perspective clearly reveals involvement of A-135 in Shekhadi landing episode.Similarly entire evidence having remained confined to act committed by A-135 of assisting and aiding Shekhadi landing and transportation operation and there existing no cementing material revealing his involvement in conspiracy he will be required to be held not guilty for offence of conspiracy for which charge is framed at head 1st ly.Undoubtedly, the respondent had participated in the landing at Shekhadi when the contraband were smuggled into India. However, as the evidence on record as well as the findings recorded by the Designated Court remain to the effect that he had not been aware of the articles smuggled, he cannot be held liable for punishment for conspiracy.224. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to beDesignated Court after appreciating the entire evidence on record reached the conclusion asconsidering material in the confession of A-58 and aforesaid co-accused the same leads to the conclusion of A-58 also being involved in Shekadi landing operation as denoted by said material and as such having committed offence u/s. 3(3) of TADA for which he is charged at head 2nd ly clauseIn the said context it is necessary to add that considering evidence pertaining to Shekhadi landing in proper perspective and role carried out by A-58 in the same and during said operation contraband material being opened at the sea shore and so also exchanged from truck to other vehicles at Wangni Tower, the defence submission that A-58 was not aware about nature of contraband material to be brought etc. does not appeal to mind. Needless to add that considering material in confession of other co-accused regarding Shekhadi landing episode it is difficult to accept such submission. Needless to add that A-58 was man of close confidence of Tiger Memon is being also revealed from fact of himself being given weapon during relevant operation. Similarly A-58 himself having participated in said operation in which large quantity of arms, ammunition and explosives were smuggled into India leading to legitimate conclusion of same being brought for commission of terrorist act and still A-58 thereafter having agreed to undergo weapon training in operating arms, ammunition in foreign country and in said process having gone to Dubai but being required to return in view of further arrangements being not made clearly denotes A- 58 was party to conspiracy to commit terrorist act punishable u/sec. 3(3) of TADA Act.However all said acts committed by A-58 being much prior to main conspiracy of committing serial blast having taken final shape i.e. during conspiratorial meetings held in month of March, 1993 and A-58 after returning from Dubai having not participated in any act furthering object of larger conspiracy for which charge at head 1st ly in framed he cannot be held liable for larger conspiracy and he will be required to be held guilty for conspiracy to commit terrorist act as statedadded)233. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to beparameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.248. The Special Judge recorded the finding that the respondent did not do anything to further the object of conspiracy. However, he was involved in sending Mohd. Jamil Omar Khatlab (PW-1) to Dubai and further to Pakistan for getting initiated in the training of weapons. The respondent received the co-accused at the airport and attended 7 conspiratorial meetings held in Dubai. Admittedly, the respondent who travelled to Dubai had a fictitious passport for a particular purpose. He further went to Pakistan and undertook the training in handling the arms, ammunition and explosives. He met Tiger Memon (AA) in Dubai, who told him that they would teach a lesson to the Indian Government by exploding bombs etc. However, the learned Designated Court did not convict him on the charge of conspiracy. Such a conclusion is not worth acceptance and the said finding being perverse, is liable to be setCourt has laid down parameters for interference against the order of acquittal time and again and the same have to be followed herein.266. In view of the fact that the respondent (A-94) had gone to Pakistan and took training in handling the arms, ammunition and explosives and also attended the conspiratorial meeting at Dubai and took oath in the name of Quran not to divulge any information regarding the conspiracy, it is abundantly clear that the respondent was aware of the purpose of training in Pakistan and he undertook the training there without any protest.267. We are of the view that the Special Judge committed an error in not convicting the respondent for the larger conspiracy. | 0 | 1,379 | 4,136 | ### Instruction:
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to as ‘CBI’) and on conclusion of the investigation, a chargesheet was filed against a large number of accused persons. Out of the accused persons against whom chargesheet was filed, 40 accused could not be put to trial as they have been absconding. Thus, the Designated Court under TADA framed charges against 138 accused persons. During the trial, 11 accused died and 2 accused turned hostile. Further the Designated Court discharged 2 accused during trial and the remaining persons including respondent (A-76) stood convicted.C. The respondent had been charged for general conspiracy which is framed against all the accused persons for the offences punishable under Section 3(3) TADA and Section 120-B of Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA and read with Sections 302, 307,326,324,427,435,436, 201 and 212 IPC and offences under Sections 3 and 7 read with Sections 25 (I-A), (l-B)(a) of the Arms Act, 1959, Sections 9-B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984.D. In addition, the respondent had been charged for persuading his brother-in-law Firoz Amani Malik (A-39) to undergo weapons’ training in Pakistan and keeping in his possession 4 handgrenades brought to him by Firoz Amani Malik (A-39) and for handing over the same to Mohd. Jabir (A-93-dead), showing that the same had been smuggled into India for committing terrorist activities.E. The Designated Court after conclusion of the trial acquitted the respondent of all the charges.Hence, this appeal. 3. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that the respondent had been responsible to send the co-accused to Dubai, and further to Pakistan to have training for handling the arms, ammunition and explosives, and therefore, his acquittal for all the charges is liable to be reversed. 4. On the contrary, learned counsel appearing for the respondent has submitted that the co-accused (A-39), who was brother-in-law of respondent himself, had not been aware of the purpose for which he had been taken to Dubai. The respondent cannot be held responsible for sending Firoz (A-39) for any criminal activity. Thus, the well- reasoned judgment of the Special Judge does not require interference. 5. We have considered the rival submissions made by learned counsel for the parties and perused the record. There is no confession by the respondent accused (A-76). 6. Confessional statement of Firoz @ Akram Amani Malik (A-39) revealed that the said respondent was the brother-in-law of Firoz @ Akram Amani Malik (A-39). The said accused Firoz @ Akram Amani Malik (A-39) had been awarded the death sentence in this very case and his appeal is being heard alongwith this case. Respondent (A-76) used to advise the said accused (A-39) to go to Dubai and the said accused also expressed his willingness and desire to go to Dubai in the month of January, 1993. He (A-39) got a passport and went to Dubai with Miyaz. After getting a visa they left the airport. One person named Ayub Bhai took them to a building near Kadar Hotel. There they found another person Nasim who took them to a flat on the 2nd floor. Nasim told him there that he would be going to Pakistan and his purpose for this visit would be explained later. 7. Prakash Khanvilkar (PW-513), deposed about the recovery of handgrenades from Mohmed Jabir Abdul Latif Mansoor (A-93). However, he does not make any reference so far as the respondent Fazal Rehman Abdul Khan (A-76) is concerned. 8. The Designated Court after appreciating the entire evidence came to the conclusion that there was nothing on record to show that the respondent though facilitated sending Firoz @ Akram Amani Malik (A-39) to Dubai, had any knowledge of the purpose of going to Dubai or Pakistan for the simple reason that Firoz @ Akram Amani Malik (A-39) himself disclosed that he was told in Dubai that he would go to Pakistan and the purpose for going there would be explained to him later on. The confessional statement of A-39 did not reveal the involvement of the respondent in persuading A-39 to undergo weapons’ training in Pakistan.9. This Court has laid down parameters for interference against the order of acquittal time and again. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject- matter of scrutiny by the appellate court. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial courts acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. 10.
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the conclusion arrived during the said discussion i.e. A-72 having committed all the said offences for which the said points are framed but for the reasons stated hereinabove. However, hardly there being any evidence of A-72 of having committed the said offence in pursuance of conspiracy for which he has been charged due to nexus of material found with him being not established with the material smuggled for commission of Serial bomb Blast and there being no other evidence he will be required to be absolved from the offence of conspiracy for which he is charged(Emphasis added)212. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.213. From the above discussion it is evident that Baba Chauhan (A-41) had given 20 hand grenades to one Ayub resident of Oshiwara. However, he has also disclosed that after his arrest on 28th March, 1993, the said contraband had been produced before the police by his father through HajiDesignated Court, after appreciating the entire evidence on record with respect to Nizammudin Qureshi, has recorded the followingsaid evidence considered in proper perspective clearly reveals close association of A-135 with Tiger Memon and/or himself man of confidence of Tiger Memon. All said evidence considered in proper perspective clearly reveals involvement of A-135 in Shekhadi landing episode.Similarly entire evidence having remained confined to act committed by A-135 of assisting and aiding Shekhadi landing and transportation operation and there existing no cementing material revealing his involvement in conspiracy he will be required to be held not guilty for offence of conspiracy for which charge is framed at head 1st ly.Undoubtedly, the respondent had participated in the landing at Shekhadi when the contraband were smuggled into India. However, as the evidence on record as well as the findings recorded by the Designated Court remain to the effect that he had not been aware of the articles smuggled, he cannot be held liable for punishment for conspiracy.224. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to beDesignated Court after appreciating the entire evidence on record reached the conclusion asconsidering material in the confession of A-58 and aforesaid co-accused the same leads to the conclusion of A-58 also being involved in Shekadi landing operation as denoted by said material and as such having committed offence u/s. 3(3) of TADA for which he is charged at head 2nd ly clauseIn the said context it is necessary to add that considering evidence pertaining to Shekhadi landing in proper perspective and role carried out by A-58 in the same and during said operation contraband material being opened at the sea shore and so also exchanged from truck to other vehicles at Wangni Tower, the defence submission that A-58 was not aware about nature of contraband material to be brought etc. does not appeal to mind. Needless to add that considering material in confession of other co-accused regarding Shekhadi landing episode it is difficult to accept such submission. Needless to add that A-58 was man of close confidence of Tiger Memon is being also revealed from fact of himself being given weapon during relevant operation. Similarly A-58 himself having participated in said operation in which large quantity of arms, ammunition and explosives were smuggled into India leading to legitimate conclusion of same being brought for commission of terrorist act and still A-58 thereafter having agreed to undergo weapon training in operating arms, ammunition in foreign country and in said process having gone to Dubai but being required to return in view of further arrangements being not made clearly denotes A- 58 was party to conspiracy to commit terrorist act punishable u/sec. 3(3) of TADA Act.However all said acts committed by A-58 being much prior to main conspiracy of committing serial blast having taken final shape i.e. during conspiratorial meetings held in month of March, 1993 and A-58 after returning from Dubai having not participated in any act furthering object of larger conspiracy for which charge at head 1st ly in framed he cannot be held liable for larger conspiracy and he will be required to be held guilty for conspiracy to commit terrorist act as statedadded)233. The parameters laid down by this Court in entertaining the appeal against the order of acquittal have to beparameters laid down by this Court in entertaining the appeal against the order of acquittal have to be applied.248. The Special Judge recorded the finding that the respondent did not do anything to further the object of conspiracy. However, he was involved in sending Mohd. Jamil Omar Khatlab (PW-1) to Dubai and further to Pakistan for getting initiated in the training of weapons. The respondent received the co-accused at the airport and attended 7 conspiratorial meetings held in Dubai. Admittedly, the respondent who travelled to Dubai had a fictitious passport for a particular purpose. He further went to Pakistan and undertook the training in handling the arms, ammunition and explosives. He met Tiger Memon (AA) in Dubai, who told him that they would teach a lesson to the Indian Government by exploding bombs etc. However, the learned Designated Court did not convict him on the charge of conspiracy. Such a conclusion is not worth acceptance and the said finding being perverse, is liable to be setCourt has laid down parameters for interference against the order of acquittal time and again and the same have to be followed herein.266. In view of the fact that the respondent (A-94) had gone to Pakistan and took training in handling the arms, ammunition and explosives and also attended the conspiratorial meeting at Dubai and took oath in the name of Quran not to divulge any information regarding the conspiracy, it is abundantly clear that the respondent was aware of the purpose of training in Pakistan and he undertook the training there without any protest.267. We are of the view that the Special Judge committed an error in not convicting the respondent for the larger conspiracy.
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M/s. Mentha & Allied Products Ltd Vs. Commissioner of Central Excise, Meerut | (Prices Control) Order, 1987. The Drugs (Prices Control) Order, 1987 defines bulk drugs as under:- "Bulk Drug" means any substance including pharmaceutical, chemical, biological or plant product or medicinal gas conforming to pharmacopoeial or other standards accepted under the Drugs and Cosmetics Act, 1940 (23 of 1940), which is used as such, or as an ingredient in any formulation." 3. The appellant claimed that he had been manufacturing and supplying Menthol as falling under the expression bulk drugs as set out in the Notification referred to above and filed classification list. Returns also were filed in appropriate forms and goods were also cleared. The appellant was availing of the exemption till 27.6.1990. On 27.6.1990 the Assistant Collector, Central Excise, Rampur proposed that the appellant should pay the excise duty without availing of the benefit of the exemption referred to earlier and issued a show cause notice proposing imposition of penalty. Objections were raised by the appellant that the - Collector was not competent to issue a show cause notice claiming excise duty for the past period exceeding six months. Thereafter, the Collector, Central Excise, Meerut, issued a show cause notice alleging that the appellant had wrongly availed of the benefit of the Notification No. 31/88 dated 1.3.1988 during the period from April 1988 to December 1988 and January 1990 to 5 April, 1990. After hearing the appellant and examining the replies filed by the appellant to the show cause notice, the Collector ultimately decided that the appellant was liable to pay differential demand of excise duty and also imposed penalty of Rs. 2 lakhs. 4. The matter was carried in appeal to the Custom, Excise & Gold (Control) Tribunal (hereinafter referred to as the Tribunal) which dismissed the appeal on the basis that Menthol cleared by the appellant is not used as such, or as an ingredient in any formulation as provided under the Drugs and Cosmetics Act, 1940 and, therefore, the appellant was not entitled for the benefit of Notification No. 31/88-CE dated 1.3.1988. 5. The basis upon which the Tribunal proceeded is that as per the definition of bulk drug, the substance mentioned in the definition must be used as such, or as an ingredient in any formulation and the expression formulation means a medicine processed out of, or containing one or more bulk drugs. The Tribunal, therefore, took the view that Menthol IP cleared by the appellant is not being used as such, or as an ingredient in any of the formulation mentioned under the Drugs (Prices Control) Order, 1987 and thus the appellant was not entitled for the benefit of Notification No. 31/88-CE dated 1.3.1988. 6. It is urged on behalf of the appellants before us that this Court in Union of India vs. Citric India Ltd., 2002 (146) ELT 259 (SC) , held that for the purpose of similar notification the question of ascertaining end use of the product is irrelevant. This Court in an appeal arising out of an order of the Tribunal in Calibre Chemicals vs. Commissioner of Central Excise, Surat, 1998 (98) ELT 755, held in Civil Appeal No. 4790 disposed of on 8.12.1997 that for the purpose of exemption Notification No. 8/95-CE an end use certificate is not necessary for potassium iodate so as to exempt it from duty as bulk drug in terms of the notification and that potassium iodate had been used in the manufacture of iodized salt and there was no dispute that potassium iodate possessed therapeutic properties. 7. All these decisions turn only on the basis of the notification which was put forth before the Courts. It is not very clear from the judgments in any of these cases as to whether any expressions are used or the attention of the Court was drawn to the same as is set out in the notification No. 31/88-CE dated 1.3.1988 or not. 8. In the present cases, we will have to consider the expression bulk drug as specified under First Schedule to the Drugs (Prices Control) Order, 1987. In Explanation after the Table in the Notification No. 31/88-CE dated 1.3.1988 it is clearly set out that the expression bulk drugs shall have the same meaning assigned to it in the Drugs (Prices Control) Order, 1987. It is clear that substance has to be used as such, or as an ingredient in any formulation in terms of the Drugs (Prices Control) Order, 1987. Further the expression formulation has also been defined in the following terms". "a medicine processed out of, or containing one or more bulk drugs or drugs with or without the use of any pharmaceutical aids, or internal or external use for.." 9. Hence, expression formulation is only with reference to a medicine processed out of bulk drug. 10. Therefore, when the ingredient used by the appellant, namely, Menthol IP, in the manufacture of tooth paste, powder and shaving cream is not in the use of any formulation which is a medicine processed out of, or containing one or more bulk drugs, the view taken by the Tribunal cannot be assailed. 11. However, so far as the application of Section 11 for the purpose of levy of penalty is concerned, we must take note of the fact that different views have been expressed at different stages both by the Tribunal and the High Court of Bombay in Citric India Ltd. vs. Union of India, 1993 (66) ELT 566 (Bom.) , and by this Court also in one of the decisions cited above, it is not clear as to whether the law is absolutely clear on the matter or not and the authorities also had to issue clarifications from time to time. In the circumstances, we think, invoking of Section 11-A is not called for and levy of penalty in the present case would not be appropriate and the application of extended period of limitation is not justified. The order of the Tribunal is modified to this extent. In other respects the order of the Tribunal stands maintained. 12. | 1[ds]All these decisions turn only on the basis of the notification which was put forth before the Courts. It is not very clear from the judgments in any of these cases as to whether any expressions are used or the attention of the Court was drawn to the same as is set out in the notification No.dated 1.3.1988 or not.In the present cases, we will have to consider the expression bulk drug as specified under First Schedule to the Drugs (Prices Control) Order, 1987. In Explanation after the Table in the Notification No.dated 1.3.1988 it is clearly set out that the expression bulk drugs shall have the same meaning assigned to it in the Drugs (Prices Control) Order, 1987. It is clear that substance has to be used as such, or as an ingredient in any formulation in terms of the Drugs (Prices Control) Order, 1987. Further the expression formulation has also been defined in the following terms".Hence, expression formulation is only with reference to a medicine processed out of bulk drug.Therefore, when the ingredient used by the appellant, namely, Menthol IP, in the manufacture of tooth paste, powder and shaving cream is not in the use of any formulation which is a medicine processed out of, or containing one or more bulk drugs, the view taken by the Tribunal cannot be assailed.However, so far as the application of Section 11 for the purpose of levy of penalty is concerned, we must take note of the fact that different views have been expressed at different stages both by the Tribunal and the High Court of Bombay in Citric India Ltd. vs. Union of India, 1993 (66) ELT 566 (Bom.) , and by this Court also in one of the decisions cited above, it is not clear as to whether the law is absolutely clear on the matter or not and the authorities also had to issue clarifications from time to time. In the circumstances, we think, invoking of Sectionis not called for and levy of penalty in the present case would not be appropriate and the application of extended period of limitation is not justified. The order of the Tribunal is modified to this extent. In other respects the order of the Tribunal stands maintained. | 1 | 1,399 | 420 | ### 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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(Prices Control) Order, 1987. The Drugs (Prices Control) Order, 1987 defines bulk drugs as under:- "Bulk Drug" means any substance including pharmaceutical, chemical, biological or plant product or medicinal gas conforming to pharmacopoeial or other standards accepted under the Drugs and Cosmetics Act, 1940 (23 of 1940), which is used as such, or as an ingredient in any formulation." 3. The appellant claimed that he had been manufacturing and supplying Menthol as falling under the expression bulk drugs as set out in the Notification referred to above and filed classification list. Returns also were filed in appropriate forms and goods were also cleared. The appellant was availing of the exemption till 27.6.1990. On 27.6.1990 the Assistant Collector, Central Excise, Rampur proposed that the appellant should pay the excise duty without availing of the benefit of the exemption referred to earlier and issued a show cause notice proposing imposition of penalty. Objections were raised by the appellant that the - Collector was not competent to issue a show cause notice claiming excise duty for the past period exceeding six months. Thereafter, the Collector, Central Excise, Meerut, issued a show cause notice alleging that the appellant had wrongly availed of the benefit of the Notification No. 31/88 dated 1.3.1988 during the period from April 1988 to December 1988 and January 1990 to 5 April, 1990. After hearing the appellant and examining the replies filed by the appellant to the show cause notice, the Collector ultimately decided that the appellant was liable to pay differential demand of excise duty and also imposed penalty of Rs. 2 lakhs. 4. The matter was carried in appeal to the Custom, Excise & Gold (Control) Tribunal (hereinafter referred to as the Tribunal) which dismissed the appeal on the basis that Menthol cleared by the appellant is not used as such, or as an ingredient in any formulation as provided under the Drugs and Cosmetics Act, 1940 and, therefore, the appellant was not entitled for the benefit of Notification No. 31/88-CE dated 1.3.1988. 5. The basis upon which the Tribunal proceeded is that as per the definition of bulk drug, the substance mentioned in the definition must be used as such, or as an ingredient in any formulation and the expression formulation means a medicine processed out of, or containing one or more bulk drugs. The Tribunal, therefore, took the view that Menthol IP cleared by the appellant is not being used as such, or as an ingredient in any of the formulation mentioned under the Drugs (Prices Control) Order, 1987 and thus the appellant was not entitled for the benefit of Notification No. 31/88-CE dated 1.3.1988. 6. It is urged on behalf of the appellants before us that this Court in Union of India vs. Citric India Ltd., 2002 (146) ELT 259 (SC) , held that for the purpose of similar notification the question of ascertaining end use of the product is irrelevant. This Court in an appeal arising out of an order of the Tribunal in Calibre Chemicals vs. Commissioner of Central Excise, Surat, 1998 (98) ELT 755, held in Civil Appeal No. 4790 disposed of on 8.12.1997 that for the purpose of exemption Notification No. 8/95-CE an end use certificate is not necessary for potassium iodate so as to exempt it from duty as bulk drug in terms of the notification and that potassium iodate had been used in the manufacture of iodized salt and there was no dispute that potassium iodate possessed therapeutic properties. 7. All these decisions turn only on the basis of the notification which was put forth before the Courts. It is not very clear from the judgments in any of these cases as to whether any expressions are used or the attention of the Court was drawn to the same as is set out in the notification No. 31/88-CE dated 1.3.1988 or not. 8. In the present cases, we will have to consider the expression bulk drug as specified under First Schedule to the Drugs (Prices Control) Order, 1987. In Explanation after the Table in the Notification No. 31/88-CE dated 1.3.1988 it is clearly set out that the expression bulk drugs shall have the same meaning assigned to it in the Drugs (Prices Control) Order, 1987. It is clear that substance has to be used as such, or as an ingredient in any formulation in terms of the Drugs (Prices Control) Order, 1987. Further the expression formulation has also been defined in the following terms". "a medicine processed out of, or containing one or more bulk drugs or drugs with or without the use of any pharmaceutical aids, or internal or external use for.." 9. Hence, expression formulation is only with reference to a medicine processed out of bulk drug. 10. Therefore, when the ingredient used by the appellant, namely, Menthol IP, in the manufacture of tooth paste, powder and shaving cream is not in the use of any formulation which is a medicine processed out of, or containing one or more bulk drugs, the view taken by the Tribunal cannot be assailed. 11. However, so far as the application of Section 11 for the purpose of levy of penalty is concerned, we must take note of the fact that different views have been expressed at different stages both by the Tribunal and the High Court of Bombay in Citric India Ltd. vs. Union of India, 1993 (66) ELT 566 (Bom.) , and by this Court also in one of the decisions cited above, it is not clear as to whether the law is absolutely clear on the matter or not and the authorities also had to issue clarifications from time to time. In the circumstances, we think, invoking of Section 11-A is not called for and levy of penalty in the present case would not be appropriate and the application of extended period of limitation is not justified. The order of the Tribunal is modified to this extent. In other respects the order of the Tribunal stands maintained. 12.
### Response:
1
### Explanation:
All these decisions turn only on the basis of the notification which was put forth before the Courts. It is not very clear from the judgments in any of these cases as to whether any expressions are used or the attention of the Court was drawn to the same as is set out in the notification No.dated 1.3.1988 or not.In the present cases, we will have to consider the expression bulk drug as specified under First Schedule to the Drugs (Prices Control) Order, 1987. In Explanation after the Table in the Notification No.dated 1.3.1988 it is clearly set out that the expression bulk drugs shall have the same meaning assigned to it in the Drugs (Prices Control) Order, 1987. It is clear that substance has to be used as such, or as an ingredient in any formulation in terms of the Drugs (Prices Control) Order, 1987. Further the expression formulation has also been defined in the following terms".Hence, expression formulation is only with reference to a medicine processed out of bulk drug.Therefore, when the ingredient used by the appellant, namely, Menthol IP, in the manufacture of tooth paste, powder and shaving cream is not in the use of any formulation which is a medicine processed out of, or containing one or more bulk drugs, the view taken by the Tribunal cannot be assailed.However, so far as the application of Section 11 for the purpose of levy of penalty is concerned, we must take note of the fact that different views have been expressed at different stages both by the Tribunal and the High Court of Bombay in Citric India Ltd. vs. Union of India, 1993 (66) ELT 566 (Bom.) , and by this Court also in one of the decisions cited above, it is not clear as to whether the law is absolutely clear on the matter or not and the authorities also had to issue clarifications from time to time. In the circumstances, we think, invoking of Sectionis not called for and levy of penalty in the present case would not be appropriate and the application of extended period of limitation is not justified. The order of the Tribunal is modified to this extent. In other respects the order of the Tribunal stands maintained.
|
DIRECTOR GENERAL CRPF Vs. JANARDAN SINGH | Shivpuri/Gwalior. The benefit is attached to their posting in the North Eastern Region and denial on the ground that their Headquarters are in Shivpuri/Gwalior has no nexus with their claim. The Tribunal has allowed that claim which has been affirmed by the High Court. 15. Much emphasis has been given by the counsel for the Appellant that Order dated 03.08.2005 has prospective application only and the benefit could have given only with effect from 03.08.2005 by which period some of the Respondents were posted out of North Eastern Region. 16. A perusal of the Order dated 03.08.2005 does not indicate that the said benefit was intended only after 03.08.2005. Paragraph 2 of the order uses the words "it is clarified that allowance would be admissible to the personnel who are actually working in the North East Region". The Order issued by the Government was clarificatory in nature. 17. We have already noticed that by Government Order dated 31.03.1987 Special (Duty) Allowance was extended to CRPF personnel posted and serving in North East Region who had their Headquarters also in that region. Obvious inference was that those personnel posted and serving in North East Region whose Headquarters were not in that region were not entitled to the benefit. Whether such classification for extending the benefit to one class of personnel who were both posted and serving there and had their Headquarter there and those personnel who were posted and serving there and having their Headquarter outside the North East Region is valid or not and passes the test of equality before law Under Article 14 is the question also needs to be considered. 18. Article 14 does not prohibit reasonable classification but for passing test of permissible classification there are two conditions which have been time and again laid down and reiterated. It is useful to refer to the Constitution Bench judgment of this Court in AIR 1955 SC 191 , BudhanChoudhary v. State of Bihar. In paragraph 5, following has been laid down:"5....It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure..." 19. Another judgment which needs to be noticed with regard to Article 14 is a judgment of this Court in AIR 1970 SC 1453, HarakchandRatanchandBanthia and Ors. v. Union of India and Ors. In paragraph 23, following has been laid down:"23....When a law is challenged as violative of Article 14 of the Constitution it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it. Having ascertained the policy and object of the Act the Court has to apply a dual test in examining its validity (1) whether the classification is rational and based upon an intelligible differentia which distinguishes persons or things that are grouped together from others that are left out of the group and (2) whether the basis of differentiation has any rational nexus or relation with its avowed policy and object..." 20. When we apply the ratio as laid down above we find that there is no intelligible differentia between two classes of employees posted and serving in North East Region as noted above. The policy of law as is clear from the original Government Order dated 14.12.1983, it is clear that Government came with the scheme of Special (Duty) Allowance with the object and purpose of encouraging, attracting and retaining the services of the officers in the North Eastern Region. To differentiate the employees in two categories i.e. (i) whose Headquarters are within North Eastern Region and (ii) whose Headquarters are outside the North Eastern Region, clearly indicate that classification is not founded on any intelligible differentia. 21. Further the differentia has no rational relation to the object sought to be achieved. When the purpose is to encourage and retain the personnel in North Eastern Region to deny the benefit of Special (Duty) Allowance to those who although posted and serving in North Eastern Region have their Headquarter outside the North East Region does not have any rational nexus with object sought to be achieved. 22. The classification as made in the Government Order dated 31.03.1987 does not pass the twin test as noted above. The Government having itself realised the error has corrected the same by Government Order dated 03.08.2005 permitted the Special (Duty) Allowance to all who are posted and serving in North East Region irrespective of the facts as whether their Headquarters are within the North Eastern Region or outside the North Eastern Region. 23. When the earlier classification as envisaged by Government Order dated 31.03.1987 itself not been valid to deny the benefit to those who were entitled to the Special (Duty) Allowance on the ground that Government came with the clarification only on 03.08.2005 shall neither be equitable nor shall stand the test of equality before the law. 24. When the denial as noted above did not pass the twin test of valid classification and was unconstitutional to deny the said benefit on the premise that Government corrected its error only on 03.08.2005, hence, with effect from 03.08.2005 only the benefit should be given does not appeal to reason. | 0[ds]11. A perusal of the aforesaid clearly indicates that genesis of grant of Special (Duty) Allowance was posting of person in North Eastern Region. The said benefits were extended to attract and retain the services of the competent officers serving in North Eastern Region.There is no dispute that the said benefit was extended to CRPF personnel also. The benefit as extended by Office Memorandum dated 14.12.1983 was revised from time to time and by 29.08.1986 revised orders were issued with effect from 01.10.1986, benefit of which orders was claimed in the claim petition filed by the Respondents before the Tribunal.A perusal of the letter dated 15.04.2005indicates that only reason for denying the Special (Duty) Allowance to the Respondents was that their Headquarters were in Shivpuri/Gwalior i.e. out of North Eastern Region although there was no denial that their posting was in North Eastern Region.The purpose and object of granting the benefit as noticed above was to reward the persons who are posted in the North Eastern Region. The Tribunal has directed for granting the benefit to the Respondents for the period they have actually worked in the North Eastern Region. When the basis for granting Special (Duty) Allowance was posting in North Eastern Region, we fail to see that how the Respondents who were posted in the North Eastern Region would have been denied the Special (Duty) Allowance on the ground that their Headquarters are in Shivpuri/Gwalior. The benefit is attached to their posting in the North Eastern Region and denial on the ground that their Headquarters are in Shivpuri/Gwalior has no nexus with their claim. The Tribunal has allowed that claim which has been affirmed by the High Court.Much emphasis has been given by the counsel for the Appellant that Order dated 03.08.2005 has prospective application only and the benefit could have given only with effect from 03.08.2005 by which period some of the Respondents were posted out of North Eastern Region.A perusal of the Order dated 03.08.2005 does not indicate that the said benefit was intended only after 03.08.2005. Paragraph 2 of the order uses the words "it is clarified that allowance would be admissible to the personnel who are actually working in the North East Region". The Order issued by the Government was clarificatory in nature.We have already noticed that by Government Order dated 31.03.1987 Special (Duty) Allowance was extended to CRPF personnel posted and serving in North East Region who had their Headquarters also in that region. Obvious inference was that those personnel posted and serving in North East Region whose Headquarters were not in that region were not entitled to the benefit. Whether such classification for extending the benefit to one class of personnel who were both posted and serving there and had their Headquarter there and those personnel who were posted and serving there and having their Headquarter outside the North East Region is valid or not and passes the test of equality before law Under Article 14 is the question also needs to be considered.When we apply the ratio as laid down above we find that there is no intelligible differentia between two classes of employees posted and serving in North East Region as noted above. The policy of law as is clear from the original Government Order dated 14.12.1983, it is clear that Government came with the scheme of Special (Duty) Allowance with the object and purpose of encouraging, attracting and retaining the services of the officers in the North Eastern Region. To differentiate the employees in two categories i.e. (i) whose Headquarters are within North Eastern Region and (ii) whose Headquarters are outside the North Eastern Region, clearly indicate that classification is not founded on any intelligible differentia.Further the differentia has no rational relation to the object sought to be achieved. When the purpose is to encourage and retain the personnel in North Eastern Region to deny the benefit of Special (Duty) Allowance to those who although posted and serving in North Eastern Region have their Headquarter outside the North East Region does not have any rational nexus with object sought to be achieved.The classification as made in the Government Order dated 31.03.1987 does not pass the twin test as noted above. The Government having itself realised the error has corrected the same by Government Order dated 03.08.2005 permitted the Special (Duty) Allowance to all who are posted and serving in North East Region irrespective of the facts as whether their Headquarters are within the North Eastern Region or outside the North Eastern Region.When the earlier classification as envisaged by Government Order dated 31.03.1987 itself not been valid to deny the benefit to those who were entitled to the Special (Duty) Allowance on the ground that Government came with the clarification only on 03.08.2005 shall neither be equitable nor shall stand the test of equality before the law.When the denial as noted above did not pass the twin test of valid classification and was unconstitutional to deny the said benefit on the premise that Government corrected its error only on 03.08.2005, hence, with effect from 03.08.2005 only the benefit should be given does not appeal to reason. | 0 | 2,953 | 909 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
Shivpuri/Gwalior. The benefit is attached to their posting in the North Eastern Region and denial on the ground that their Headquarters are in Shivpuri/Gwalior has no nexus with their claim. The Tribunal has allowed that claim which has been affirmed by the High Court. 15. Much emphasis has been given by the counsel for the Appellant that Order dated 03.08.2005 has prospective application only and the benefit could have given only with effect from 03.08.2005 by which period some of the Respondents were posted out of North Eastern Region. 16. A perusal of the Order dated 03.08.2005 does not indicate that the said benefit was intended only after 03.08.2005. Paragraph 2 of the order uses the words "it is clarified that allowance would be admissible to the personnel who are actually working in the North East Region". The Order issued by the Government was clarificatory in nature. 17. We have already noticed that by Government Order dated 31.03.1987 Special (Duty) Allowance was extended to CRPF personnel posted and serving in North East Region who had their Headquarters also in that region. Obvious inference was that those personnel posted and serving in North East Region whose Headquarters were not in that region were not entitled to the benefit. Whether such classification for extending the benefit to one class of personnel who were both posted and serving there and had their Headquarter there and those personnel who were posted and serving there and having their Headquarter outside the North East Region is valid or not and passes the test of equality before law Under Article 14 is the question also needs to be considered. 18. Article 14 does not prohibit reasonable classification but for passing test of permissible classification there are two conditions which have been time and again laid down and reiterated. It is useful to refer to the Constitution Bench judgment of this Court in AIR 1955 SC 191 , BudhanChoudhary v. State of Bihar. In paragraph 5, following has been laid down:"5....It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure..." 19. Another judgment which needs to be noticed with regard to Article 14 is a judgment of this Court in AIR 1970 SC 1453, HarakchandRatanchandBanthia and Ors. v. Union of India and Ors. In paragraph 23, following has been laid down:"23....When a law is challenged as violative of Article 14 of the Constitution it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it. Having ascertained the policy and object of the Act the Court has to apply a dual test in examining its validity (1) whether the classification is rational and based upon an intelligible differentia which distinguishes persons or things that are grouped together from others that are left out of the group and (2) whether the basis of differentiation has any rational nexus or relation with its avowed policy and object..." 20. When we apply the ratio as laid down above we find that there is no intelligible differentia between two classes of employees posted and serving in North East Region as noted above. The policy of law as is clear from the original Government Order dated 14.12.1983, it is clear that Government came with the scheme of Special (Duty) Allowance with the object and purpose of encouraging, attracting and retaining the services of the officers in the North Eastern Region. To differentiate the employees in two categories i.e. (i) whose Headquarters are within North Eastern Region and (ii) whose Headquarters are outside the North Eastern Region, clearly indicate that classification is not founded on any intelligible differentia. 21. Further the differentia has no rational relation to the object sought to be achieved. When the purpose is to encourage and retain the personnel in North Eastern Region to deny the benefit of Special (Duty) Allowance to those who although posted and serving in North Eastern Region have their Headquarter outside the North East Region does not have any rational nexus with object sought to be achieved. 22. The classification as made in the Government Order dated 31.03.1987 does not pass the twin test as noted above. The Government having itself realised the error has corrected the same by Government Order dated 03.08.2005 permitted the Special (Duty) Allowance to all who are posted and serving in North East Region irrespective of the facts as whether their Headquarters are within the North Eastern Region or outside the North Eastern Region. 23. When the earlier classification as envisaged by Government Order dated 31.03.1987 itself not been valid to deny the benefit to those who were entitled to the Special (Duty) Allowance on the ground that Government came with the clarification only on 03.08.2005 shall neither be equitable nor shall stand the test of equality before the law. 24. When the denial as noted above did not pass the twin test of valid classification and was unconstitutional to deny the said benefit on the premise that Government corrected its error only on 03.08.2005, hence, with effect from 03.08.2005 only the benefit should be given does not appeal to reason.
### Response:
0
### Explanation:
11. A perusal of the aforesaid clearly indicates that genesis of grant of Special (Duty) Allowance was posting of person in North Eastern Region. The said benefits were extended to attract and retain the services of the competent officers serving in North Eastern Region.There is no dispute that the said benefit was extended to CRPF personnel also. The benefit as extended by Office Memorandum dated 14.12.1983 was revised from time to time and by 29.08.1986 revised orders were issued with effect from 01.10.1986, benefit of which orders was claimed in the claim petition filed by the Respondents before the Tribunal.A perusal of the letter dated 15.04.2005indicates that only reason for denying the Special (Duty) Allowance to the Respondents was that their Headquarters were in Shivpuri/Gwalior i.e. out of North Eastern Region although there was no denial that their posting was in North Eastern Region.The purpose and object of granting the benefit as noticed above was to reward the persons who are posted in the North Eastern Region. The Tribunal has directed for granting the benefit to the Respondents for the period they have actually worked in the North Eastern Region. When the basis for granting Special (Duty) Allowance was posting in North Eastern Region, we fail to see that how the Respondents who were posted in the North Eastern Region would have been denied the Special (Duty) Allowance on the ground that their Headquarters are in Shivpuri/Gwalior. The benefit is attached to their posting in the North Eastern Region and denial on the ground that their Headquarters are in Shivpuri/Gwalior has no nexus with their claim. The Tribunal has allowed that claim which has been affirmed by the High Court.Much emphasis has been given by the counsel for the Appellant that Order dated 03.08.2005 has prospective application only and the benefit could have given only with effect from 03.08.2005 by which period some of the Respondents were posted out of North Eastern Region.A perusal of the Order dated 03.08.2005 does not indicate that the said benefit was intended only after 03.08.2005. Paragraph 2 of the order uses the words "it is clarified that allowance would be admissible to the personnel who are actually working in the North East Region". The Order issued by the Government was clarificatory in nature.We have already noticed that by Government Order dated 31.03.1987 Special (Duty) Allowance was extended to CRPF personnel posted and serving in North East Region who had their Headquarters also in that region. Obvious inference was that those personnel posted and serving in North East Region whose Headquarters were not in that region were not entitled to the benefit. Whether such classification for extending the benefit to one class of personnel who were both posted and serving there and had their Headquarter there and those personnel who were posted and serving there and having their Headquarter outside the North East Region is valid or not and passes the test of equality before law Under Article 14 is the question also needs to be considered.When we apply the ratio as laid down above we find that there is no intelligible differentia between two classes of employees posted and serving in North East Region as noted above. The policy of law as is clear from the original Government Order dated 14.12.1983, it is clear that Government came with the scheme of Special (Duty) Allowance with the object and purpose of encouraging, attracting and retaining the services of the officers in the North Eastern Region. To differentiate the employees in two categories i.e. (i) whose Headquarters are within North Eastern Region and (ii) whose Headquarters are outside the North Eastern Region, clearly indicate that classification is not founded on any intelligible differentia.Further the differentia has no rational relation to the object sought to be achieved. When the purpose is to encourage and retain the personnel in North Eastern Region to deny the benefit of Special (Duty) Allowance to those who although posted and serving in North Eastern Region have their Headquarter outside the North East Region does not have any rational nexus with object sought to be achieved.The classification as made in the Government Order dated 31.03.1987 does not pass the twin test as noted above. The Government having itself realised the error has corrected the same by Government Order dated 03.08.2005 permitted the Special (Duty) Allowance to all who are posted and serving in North East Region irrespective of the facts as whether their Headquarters are within the North Eastern Region or outside the North Eastern Region.When the earlier classification as envisaged by Government Order dated 31.03.1987 itself not been valid to deny the benefit to those who were entitled to the Special (Duty) Allowance on the ground that Government came with the clarification only on 03.08.2005 shall neither be equitable nor shall stand the test of equality before the law.When the denial as noted above did not pass the twin test of valid classification and was unconstitutional to deny the said benefit on the premise that Government corrected its error only on 03.08.2005, hence, with effect from 03.08.2005 only the benefit should be given does not appeal to reason.
|
Ram Laxman Sugar Mills Vs. Commissioner of Income Tax, U.P., and Another | in the first instance to determine the intention of the parties, and when ambiguous expressions are used the court may normally adopt that interpretation which upholds the deed, if the parties thereto have acted on the assumption of its validity. From the mere fact that the manager of a Hindu undivided family describing himself as representing the family entered into an agreement of partnership with other persons, it cannot be inferred that an agreement of partnership was intended contrary to law between a Hindu undivided family consisting of all adult members, females, minors and even unborn persons and strangers to the family5. A partnership under section 4 of the Indian Partnership Act is " the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all." Under an agreement of partnership there must arise the relation of principal and agent inter se between the members of the partnership for the purpose of carrying on the business. The intention disclosed by the deed was that Lala Suraj Bhan was to be a partner, and he was described as manager and he signed the document in that capacity ; it did not thereby seek to bring into existence a relationship of partners between the Hindu undivided family and the other members described as the second party. Nor can it be said that by this agreement it was intended to make all the adult members of the Hindu undivided family of Dina Nath Nanak Chand partners of the assessee-firm. None of the clauses of the deed of partnership evidences an intention that the members of the partnership were to be agents inter se or agents of the members of the second party for the purpose of carrying on the business of the assessee-firm. In our view, the true interpretation of this clause is that Lala Suraj Bhan was the first party under the deed. He was merely described as the manager of the joint Hindu trading firm known and styled as Messrs. Dina Nath Nanak Chand, but thereby there was no attempt to make the family a partner of the firmReliance was placed upon certain clauses of the deed of partnership which, counsel for the Commissioner says, evidenced an intention that the members of Dina Nath Nanak Chand were to be partners of the assessee-firm, Clause 6 of the deed of partnership stated6. Notwithstanding anything herein contained to the contrary the second party may at their discretion recover their dues from the share of income of the first party on account of the profits of the said Mills.If however the first party meant Lala Suraj Bhan this clause does not indicate that the members of the joint family, of which Lala Suraj Bhan was the manager, become on that account partners. In clause 7 it was stated, inter alia:" It is declared that though the members of the second party have got their shares inter se defined the members of the second party shall be treated as one group and would be jointly entitled to the rights and be responsible for the liabilities as a partner to the first party. Likewise the members of the first party would be jointly entitled to the rights and be responsible for the liabilities as a partner to the second party7. The first part of the clause does not indicate that the members of the joint family, Dina Nath Nanak Chand, were entitled to enforce any claim against the second party. The second part is somewhat obscure. The expression " members of the first party " means, in our judgment, having regard to the other covenants, Lala Suraj Bhan alone : it was not by the use of that expression intended to invest the members of the joint family of Dina Nath Nanak Chand with the rights and liabilities of the partners. Several other clauses of the deed, e.g., clauses 8 and 15 and other clauses seek to emphasize that the members of the joint family of Dina Nath Nanak Chand were not entitled to interfere with the management or to deal with the assets of the partnership. But no implication arises therefrom that but for those covenants the members of the joint family would have the competence or the rights negatived thereby. By clause 17 it is provided that in case of death or inability of either of the managing directors to manage the business, it shall be open to the members of either parties to replace such managing director by another person from the group which was represented by the dead or incapacitated managing director. The clause only provides a scheme for the continuation of the business and does not confer any right of partnership upon the members of the joint family of Dina Nath Nanak Chand. The signature of Lala Suraj Bhan who signed the document " For and on behalf of Dina Nath Nanak Chand manager and karta " only indicates that Suraj Bhan was acting as a manager of the family in entering into the partnership agreement. Thereby he was not seeking to make the members of the joint family, Dina Nath Nanak Chand, partners of the assessee-firmThe deed has not been carefully drawn up, and somewhat inconsistent recitals have been made. But taking an overall view of the diverse covenants, we hold that the partnership agreement was between Lala Suraj Bhan on the one hand, and the named persons on the other, and the fact that Lala Suraj Bhan was originally the karta of the joint family, Dina Nath Nanak Chand, and that joint family had later ceased to exist by reason of partition will not affect the validity of the partnership or its continuance. Lala Suraj Bhan being the contracting party, the application for registration could not be rejected because the other members of the joint family, Dina Nath Nanak Chand, did not sign the application for renewal of registration of the firm for the year 1950-51 | 1[ds]In ascertaining the legal effect of a transaction the court seeks in the first instance to determine the intention of the parties, and when ambiguous expressions are used the court may normally adopt that interpretation which upholds the deed, if the parties thereto have acted on the assumption of its validity. From the mere fact that the manager of a Hindu undivided family describing himself as representing the family entered into an agreement of partnership with other persons, it cannot be inferred that an agreement of partnership was intended contrary to law between a Hindu undivided family consisting of all adult members, females, minors and even unborn persons and strangers to theour view, the true interpretation of this clause is that Lala Suraj Bhan was the first party under the deed. He was merely described as the manager of the joint Hindu trading firm known and styled as Messrs.The first part of the clause does not indicate that the members of the joint family, Dina Nath Nanak Chand, were entitled to enforce any claim against the second party. The second part is somewhat obscure. The expression " members of the first party " means, in our judgment, having regard to the other covenants, Lala Suraj Bhan alone : it was not by the use of that expression intended to invest the members of the joint family of Dina Nath Nanak Chand with the rights and liabilities of the partners. Several other clauses of the deed, e.g., clauses 8 and 15 and other clauses seek to emphasize that the members of the joint family of Dina Nath Nanak Chand were not entitled to interfere with the management or to deal with the assets of the partnership. But no implication arises therefrom that but for those covenants the members of the joint family would have the competence or the rights negatived thereby. By clause 17 it is provided that in case of death or inability of either of the managing directors to manage the business, it shall be open to the members of either parties to replace such managing director by another person from the group which was represented by the dead or incapacitated managing director. The clause only provides a scheme for the continuation of the business and does not confer any right of partnership upon the members of the joint family of Dina Nath Nanak Chand. The signature of Lala Suraj Bhan who signed the document " For and on behalf of Dina Nath Nanak Chand manager and karta " only indicates that Suraj Bhan was acting as a manager of the family in entering into the partnership agreement. Thereby he was not seeking to make the members of the joint family, Dina Nath Nanak Chand, partners of thedeed has not been carefully drawn up, and somewhat inconsistent recitals have been made. But taking an overall view of the diverse covenants, we hold that the partnership agreement was between Lala Suraj Bhan on the one hand, and the named persons on the other, and the fact that Lala Suraj Bhan was originally the karta of the joint family, Dina Nath Nanak Chand, and that joint family had later ceased to exist by reason of partition will not affect the validity of the partnership or its continuance. Lala Suraj Bhan being the contracting party, the application for registration could not be rejected because the other members of the joint family, Dina Nath Nanak Chand, did not sign the application for renewal of registration of the firmfor the year | 1 | 2,257 | 629 | ### Instruction:
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in the first instance to determine the intention of the parties, and when ambiguous expressions are used the court may normally adopt that interpretation which upholds the deed, if the parties thereto have acted on the assumption of its validity. From the mere fact that the manager of a Hindu undivided family describing himself as representing the family entered into an agreement of partnership with other persons, it cannot be inferred that an agreement of partnership was intended contrary to law between a Hindu undivided family consisting of all adult members, females, minors and even unborn persons and strangers to the family5. A partnership under section 4 of the Indian Partnership Act is " the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all." Under an agreement of partnership there must arise the relation of principal and agent inter se between the members of the partnership for the purpose of carrying on the business. The intention disclosed by the deed was that Lala Suraj Bhan was to be a partner, and he was described as manager and he signed the document in that capacity ; it did not thereby seek to bring into existence a relationship of partners between the Hindu undivided family and the other members described as the second party. Nor can it be said that by this agreement it was intended to make all the adult members of the Hindu undivided family of Dina Nath Nanak Chand partners of the assessee-firm. None of the clauses of the deed of partnership evidences an intention that the members of the partnership were to be agents inter se or agents of the members of the second party for the purpose of carrying on the business of the assessee-firm. In our view, the true interpretation of this clause is that Lala Suraj Bhan was the first party under the deed. He was merely described as the manager of the joint Hindu trading firm known and styled as Messrs. Dina Nath Nanak Chand, but thereby there was no attempt to make the family a partner of the firmReliance was placed upon certain clauses of the deed of partnership which, counsel for the Commissioner says, evidenced an intention that the members of Dina Nath Nanak Chand were to be partners of the assessee-firm, Clause 6 of the deed of partnership stated6. Notwithstanding anything herein contained to the contrary the second party may at their discretion recover their dues from the share of income of the first party on account of the profits of the said Mills.If however the first party meant Lala Suraj Bhan this clause does not indicate that the members of the joint family, of which Lala Suraj Bhan was the manager, become on that account partners. In clause 7 it was stated, inter alia:" It is declared that though the members of the second party have got their shares inter se defined the members of the second party shall be treated as one group and would be jointly entitled to the rights and be responsible for the liabilities as a partner to the first party. Likewise the members of the first party would be jointly entitled to the rights and be responsible for the liabilities as a partner to the second party7. The first part of the clause does not indicate that the members of the joint family, Dina Nath Nanak Chand, were entitled to enforce any claim against the second party. The second part is somewhat obscure. The expression " members of the first party " means, in our judgment, having regard to the other covenants, Lala Suraj Bhan alone : it was not by the use of that expression intended to invest the members of the joint family of Dina Nath Nanak Chand with the rights and liabilities of the partners. Several other clauses of the deed, e.g., clauses 8 and 15 and other clauses seek to emphasize that the members of the joint family of Dina Nath Nanak Chand were not entitled to interfere with the management or to deal with the assets of the partnership. But no implication arises therefrom that but for those covenants the members of the joint family would have the competence or the rights negatived thereby. By clause 17 it is provided that in case of death or inability of either of the managing directors to manage the business, it shall be open to the members of either parties to replace such managing director by another person from the group which was represented by the dead or incapacitated managing director. The clause only provides a scheme for the continuation of the business and does not confer any right of partnership upon the members of the joint family of Dina Nath Nanak Chand. The signature of Lala Suraj Bhan who signed the document " For and on behalf of Dina Nath Nanak Chand manager and karta " only indicates that Suraj Bhan was acting as a manager of the family in entering into the partnership agreement. Thereby he was not seeking to make the members of the joint family, Dina Nath Nanak Chand, partners of the assessee-firmThe deed has not been carefully drawn up, and somewhat inconsistent recitals have been made. But taking an overall view of the diverse covenants, we hold that the partnership agreement was between Lala Suraj Bhan on the one hand, and the named persons on the other, and the fact that Lala Suraj Bhan was originally the karta of the joint family, Dina Nath Nanak Chand, and that joint family had later ceased to exist by reason of partition will not affect the validity of the partnership or its continuance. Lala Suraj Bhan being the contracting party, the application for registration could not be rejected because the other members of the joint family, Dina Nath Nanak Chand, did not sign the application for renewal of registration of the firm for the year 1950-51
### Response:
1
### Explanation:
In ascertaining the legal effect of a transaction the court seeks in the first instance to determine the intention of the parties, and when ambiguous expressions are used the court may normally adopt that interpretation which upholds the deed, if the parties thereto have acted on the assumption of its validity. From the mere fact that the manager of a Hindu undivided family describing himself as representing the family entered into an agreement of partnership with other persons, it cannot be inferred that an agreement of partnership was intended contrary to law between a Hindu undivided family consisting of all adult members, females, minors and even unborn persons and strangers to theour view, the true interpretation of this clause is that Lala Suraj Bhan was the first party under the deed. He was merely described as the manager of the joint Hindu trading firm known and styled as Messrs.The first part of the clause does not indicate that the members of the joint family, Dina Nath Nanak Chand, were entitled to enforce any claim against the second party. The second part is somewhat obscure. The expression " members of the first party " means, in our judgment, having regard to the other covenants, Lala Suraj Bhan alone : it was not by the use of that expression intended to invest the members of the joint family of Dina Nath Nanak Chand with the rights and liabilities of the partners. Several other clauses of the deed, e.g., clauses 8 and 15 and other clauses seek to emphasize that the members of the joint family of Dina Nath Nanak Chand were not entitled to interfere with the management or to deal with the assets of the partnership. But no implication arises therefrom that but for those covenants the members of the joint family would have the competence or the rights negatived thereby. By clause 17 it is provided that in case of death or inability of either of the managing directors to manage the business, it shall be open to the members of either parties to replace such managing director by another person from the group which was represented by the dead or incapacitated managing director. The clause only provides a scheme for the continuation of the business and does not confer any right of partnership upon the members of the joint family of Dina Nath Nanak Chand. The signature of Lala Suraj Bhan who signed the document " For and on behalf of Dina Nath Nanak Chand manager and karta " only indicates that Suraj Bhan was acting as a manager of the family in entering into the partnership agreement. Thereby he was not seeking to make the members of the joint family, Dina Nath Nanak Chand, partners of thedeed has not been carefully drawn up, and somewhat inconsistent recitals have been made. But taking an overall view of the diverse covenants, we hold that the partnership agreement was between Lala Suraj Bhan on the one hand, and the named persons on the other, and the fact that Lala Suraj Bhan was originally the karta of the joint family, Dina Nath Nanak Chand, and that joint family had later ceased to exist by reason of partition will not affect the validity of the partnership or its continuance. Lala Suraj Bhan being the contracting party, the application for registration could not be rejected because the other members of the joint family, Dina Nath Nanak Chand, did not sign the application for renewal of registration of the firmfor the year
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V.N. Devadoss Vs. Chief Rev. Control Officer-Cum-Ins | to pay the duty. (3) The Collector may, suo motu or otherwise, within five years from the date of registration of any instrument of conveyance, exchange, gift, release of benami right or settlement, not already referred to him under sub-section (1), call for the examine the instrument for the purpose of satisfying himself as to the correctness of the market value of the property which is the subject matter of conveyance, exchange, gift, release of benami, right or settlement, and the duty payable thereon and if after such examination, he has reason to believe that the market value of the property has not been truly set forth in the instrument, he may determine the market value of such property and the duty as aforesaid in accordance with the procedure provided for in sub-section (2). The difference, if any, in the amount of duty, shall be payable by the persons liable to pay the duty: Provided that nothing in this subsection shall apply to any instrument registered before the date of commencement of the Indian Stamp (Tamil Nadu Amendment) Act, 1967. (4) ...................... (5) Any person aggrieved by an order of the Collector under sub-section (2) or sub section (3), may appeal to such authority as may be prescribed in this behalf. All such appeals shall be preferred within such time, and shall be heard and disposed of in such manner, as may be prescribed by rules made under this Act. (6) ...................... (7) ...................... (8) ..................... (9) ...................... (10) Any person aggrieved by an order of the authority prescribed under subsection (5) or the Chief Controlling Revenue Authority under sub-section (6) may, within such time and in such manner, as may be prescribed by rules made under this Act, appeal to the High Court." "Rule 4: Procedure on receipt of reference under Section 47A: (1) .............. (2) .............. (3) .............. (4) After considering the representations, if any, received from the person to whom notice under sub-rule (1) has been issued, and after examining the records and evidence before him, the Collector shall pass an order in writing provisionally determining the market value of the properties and the duty payable. The basis on which the provisional market value was arrived at shall be clearly indicated in the order." 7. A bare perusal of the rules make the position clear that sub-Rule (4) enumerates procedure on receipt of reference under Section 47-A. Rule 5 speaks about the principles for determination of market value. Sub-clause (a) refers to lands; (b) house sites; (c) buildings and (d) properties other than lands, house sites and buildings. Sub-Sections (1) and (3) of Section 47-A clearly reveal the intention of the Legislature that there must be a reason to believe that the market value of the property which is the subject matter of the conveyance has not been truly set out in the instrument. It is not a routine procedure to be followed in respect of each and every document of conveyance presented for registration without any evidence to show lack of bona fides of the parties to the document by attempting fraudulently to under value the subject of conveyance with a view to evade payment of proper stamp duty and thereby cause loss to the revenue. Therefore, the basis for exercise of power under Section 47-A of the Act is willful under valuation of the subject of transfer with fraudulent intention to evade payment of proper stamp duty.8. In the instant case the factual scenario shows that the vendors of the appellant i.e. M/s Dunlop India Limited became a sick industry and was declared so under the provisions of 1985 Act. Consequent upon such declaration, surplus properties and assets belonging to the said company were disposed of on the basis of orders passed by BIFR and AIFR by forming an Assets Sales Committee. The appellant submitted that his tender alongwith others and his offer of Rs.24.34 crores approximately was the highest, and the same was accepted by the Assets Sales Committee and also by the statutory authorities. The company was granted permission to execute the sale deed in favour of the appellant. 9. Stand of the State is that what has been disclosed is clearly a sale value and the same cannot be termed as market value. There is fallacy in this argument. 10. Market value is a changing concept. The explanation to sub-Rule (5) makes the position clear that value would be such as would have fetched or would fetch if sold in the open market on the date of execution of the instrument of conveyance. Here, the property was offered for sale in the open market and bids were invited. That being so, there is no question of any intention to defraud the revenue or non disclosure of the correct price. The factual scenario as indicated above goes to show that the properties were disposed of by the orders of BIFR and AIFR and that too on the basis of value fixed by ASG. The view expressed by the Assets Sales Committee which consisted of members such as representatives of IDBI, Debenture Holders, Government of West Bengal and Special Director of BIFR. That being so, there is no possibility of any under valuation and, therefore, Section 47-A of the Act has no application. It is not correct as observed by the High Court that BIFR was only a mediator. 11. Sale has been defined under Section 54 of the Transfer of Property Act, 1882 (in short the `TP Act). Although the Act has not included the definition of sale, Section 2(10) of the Act defines conveyance as including a conveyance on sale, every instrument and every decree or final order of any Civil Court by which property whether immovable or moveable or any estate or interest in any property is transferred to, or vested in or declared to be of any other person, inter vivos, and which is not otherwise specifically provided for by Schedule I or Schedule 1-A, as the case may be. | 1[ds]7. A bare perusal of the rules make the position clear that sub-Rule (4) enumerates procedure on receipt of reference under Section 47-A. Rule 5 speaks about the principles for determination of market value. Sub-clause (a) refers to lands; (b) house sites; (c) buildings and (d) properties other than lands, house sites and buildings. Sub-Sections (1) and (3) of Section 47-A clearly reveal the intention of the Legislature that there must be a reason to believe that the market value of the property which is the subject matter of the conveyance has not been truly set out in the instrument. It is not a routine procedure to be followed in respect of each and every document of conveyance presented for registration without any evidence to show lack of bona fides of the parties to the document by attempting fraudulently to under value the subject of conveyance with a view to evade payment of proper stamp duty and thereby cause loss to the revenue. Therefore, the basis for exercise of power under Section 47-A of the Act is willful under valuation of the subject of transfer with fraudulent intention to evade payment of proper stamp duty.8. In the instant case the factual scenario shows that the vendors of the appellant i.e. M/s Dunlop India Limited became a sick industry and was declared so under the provisions of 1985 Act. Consequent upon such declaration, surplus properties and assets belonging to the said company were disposed of on the basis of orders passed by BIFR and AIFR by forming an Assets Sales Committee.Market value is a changing concept. The explanation to sub-Rule (5) makes the position clear that value would be such as would have fetched or would fetch if sold in the open market on the date of execution of the instrument of conveyance. Here, the property was offered for sale in the open market and bids were invited. That being so, there is no question of any intention to defraud the revenue or non disclosure of the correct price. The factual scenario as indicated above goes to show that the properties were disposed of by the orders of BIFR and AIFR and that too on the basis of value fixed by ASG. The view expressed by the Assets Sales Committee which consisted of members such as representatives of IDBI, Debenture Holders, Government of West Bengal and Special Director of BIFR. That being so, there is no possibility of any under valuation and, therefore, Section 47-A of the Act has no application. It is not correct as observed by the High Court that BIFR was only a mediator. | 1 | 2,435 | 485 | ### 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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to pay the duty. (3) The Collector may, suo motu or otherwise, within five years from the date of registration of any instrument of conveyance, exchange, gift, release of benami right or settlement, not already referred to him under sub-section (1), call for the examine the instrument for the purpose of satisfying himself as to the correctness of the market value of the property which is the subject matter of conveyance, exchange, gift, release of benami, right or settlement, and the duty payable thereon and if after such examination, he has reason to believe that the market value of the property has not been truly set forth in the instrument, he may determine the market value of such property and the duty as aforesaid in accordance with the procedure provided for in sub-section (2). The difference, if any, in the amount of duty, shall be payable by the persons liable to pay the duty: Provided that nothing in this subsection shall apply to any instrument registered before the date of commencement of the Indian Stamp (Tamil Nadu Amendment) Act, 1967. (4) ...................... (5) Any person aggrieved by an order of the Collector under sub-section (2) or sub section (3), may appeal to such authority as may be prescribed in this behalf. All such appeals shall be preferred within such time, and shall be heard and disposed of in such manner, as may be prescribed by rules made under this Act. (6) ...................... (7) ...................... (8) ..................... (9) ...................... (10) Any person aggrieved by an order of the authority prescribed under subsection (5) or the Chief Controlling Revenue Authority under sub-section (6) may, within such time and in such manner, as may be prescribed by rules made under this Act, appeal to the High Court." "Rule 4: Procedure on receipt of reference under Section 47A: (1) .............. (2) .............. (3) .............. (4) After considering the representations, if any, received from the person to whom notice under sub-rule (1) has been issued, and after examining the records and evidence before him, the Collector shall pass an order in writing provisionally determining the market value of the properties and the duty payable. The basis on which the provisional market value was arrived at shall be clearly indicated in the order." 7. A bare perusal of the rules make the position clear that sub-Rule (4) enumerates procedure on receipt of reference under Section 47-A. Rule 5 speaks about the principles for determination of market value. Sub-clause (a) refers to lands; (b) house sites; (c) buildings and (d) properties other than lands, house sites and buildings. Sub-Sections (1) and (3) of Section 47-A clearly reveal the intention of the Legislature that there must be a reason to believe that the market value of the property which is the subject matter of the conveyance has not been truly set out in the instrument. It is not a routine procedure to be followed in respect of each and every document of conveyance presented for registration without any evidence to show lack of bona fides of the parties to the document by attempting fraudulently to under value the subject of conveyance with a view to evade payment of proper stamp duty and thereby cause loss to the revenue. Therefore, the basis for exercise of power under Section 47-A of the Act is willful under valuation of the subject of transfer with fraudulent intention to evade payment of proper stamp duty.8. In the instant case the factual scenario shows that the vendors of the appellant i.e. M/s Dunlop India Limited became a sick industry and was declared so under the provisions of 1985 Act. Consequent upon such declaration, surplus properties and assets belonging to the said company were disposed of on the basis of orders passed by BIFR and AIFR by forming an Assets Sales Committee. The appellant submitted that his tender alongwith others and his offer of Rs.24.34 crores approximately was the highest, and the same was accepted by the Assets Sales Committee and also by the statutory authorities. The company was granted permission to execute the sale deed in favour of the appellant. 9. Stand of the State is that what has been disclosed is clearly a sale value and the same cannot be termed as market value. There is fallacy in this argument. 10. Market value is a changing concept. The explanation to sub-Rule (5) makes the position clear that value would be such as would have fetched or would fetch if sold in the open market on the date of execution of the instrument of conveyance. Here, the property was offered for sale in the open market and bids were invited. That being so, there is no question of any intention to defraud the revenue or non disclosure of the correct price. The factual scenario as indicated above goes to show that the properties were disposed of by the orders of BIFR and AIFR and that too on the basis of value fixed by ASG. The view expressed by the Assets Sales Committee which consisted of members such as representatives of IDBI, Debenture Holders, Government of West Bengal and Special Director of BIFR. That being so, there is no possibility of any under valuation and, therefore, Section 47-A of the Act has no application. It is not correct as observed by the High Court that BIFR was only a mediator. 11. Sale has been defined under Section 54 of the Transfer of Property Act, 1882 (in short the `TP Act). Although the Act has not included the definition of sale, Section 2(10) of the Act defines conveyance as including a conveyance on sale, every instrument and every decree or final order of any Civil Court by which property whether immovable or moveable or any estate or interest in any property is transferred to, or vested in or declared to be of any other person, inter vivos, and which is not otherwise specifically provided for by Schedule I or Schedule 1-A, as the case may be.
### Response:
1
### Explanation:
7. A bare perusal of the rules make the position clear that sub-Rule (4) enumerates procedure on receipt of reference under Section 47-A. Rule 5 speaks about the principles for determination of market value. Sub-clause (a) refers to lands; (b) house sites; (c) buildings and (d) properties other than lands, house sites and buildings. Sub-Sections (1) and (3) of Section 47-A clearly reveal the intention of the Legislature that there must be a reason to believe that the market value of the property which is the subject matter of the conveyance has not been truly set out in the instrument. It is not a routine procedure to be followed in respect of each and every document of conveyance presented for registration without any evidence to show lack of bona fides of the parties to the document by attempting fraudulently to under value the subject of conveyance with a view to evade payment of proper stamp duty and thereby cause loss to the revenue. Therefore, the basis for exercise of power under Section 47-A of the Act is willful under valuation of the subject of transfer with fraudulent intention to evade payment of proper stamp duty.8. In the instant case the factual scenario shows that the vendors of the appellant i.e. M/s Dunlop India Limited became a sick industry and was declared so under the provisions of 1985 Act. Consequent upon such declaration, surplus properties and assets belonging to the said company were disposed of on the basis of orders passed by BIFR and AIFR by forming an Assets Sales Committee.Market value is a changing concept. The explanation to sub-Rule (5) makes the position clear that value would be such as would have fetched or would fetch if sold in the open market on the date of execution of the instrument of conveyance. Here, the property was offered for sale in the open market and bids were invited. That being so, there is no question of any intention to defraud the revenue or non disclosure of the correct price. The factual scenario as indicated above goes to show that the properties were disposed of by the orders of BIFR and AIFR and that too on the basis of value fixed by ASG. The view expressed by the Assets Sales Committee which consisted of members such as representatives of IDBI, Debenture Holders, Government of West Bengal and Special Director of BIFR. That being so, there is no possibility of any under valuation and, therefore, Section 47-A of the Act has no application. It is not correct as observed by the High Court that BIFR was only a mediator.
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M. A. A. Annamalai Vs. State of Karnataka and Anr | in which this Court, while dealing with section 482 Cr.P.C. has held as under: "It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence". 37. The learned counsel for the State further submitted that the mere settlement of the case with the complainant on whose complaint the initial FIR was lodged does not dislodge a criminal prosecution by the State. Several other witnesses exist who would testify to the transactions and it would be up to the trial court to test the prosecution case. 38. Reliance was also placed on the case of Medchl Chemicals & Pharma (P) Ltd. v. Biological E.Ltd. & Ors.(2000) 3 SCC 269 , wherein this Court observed as under: "Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint". 39. It is further submitted by the counsel for the State that the complaint clearly disclosed the offences under sections 3, 4, 5 and 6 of the Act and also offence under section 420 IPC. 40. Reliance has been placed by the learned counsel for the State that this Court in Kuriachan Chacko & Others v. State of Kerala (2008) 8 SCC 708 , while dealing with the Prize Chits and Money Circulation Schemes (Banning) Act, has held that: "21. The Preamble of the 1978 Act declares that it has been enacted "to ban the promotion or conduct of prize chits and money circulation schemes and for matters connected therewith and incidental thereto". 22. Section 2 is legislative dictionary and defines certain terms. The phrase "money circulation scheme" is defined in clause (c) which reads as under: 2.(c) `money circulation scheme means any scheme, by whatever name called, for the making of quick or easy money, or for the receipt of any money or valuable thing as the consideration for a promise to pay money, on any event or contingency relative or applicable to the enrolment of members into the scheme, whether or not such money or thing is derived from the entrance money of the members of such scheme or periodical subscriptions; In this case, it was further held that: "39. We are unable to agree with the learned counsel. The courts below rightly held that prima facie case had been made out against the accused. Both the ingredients necessary for application of Section 2(c) of the Act are present in the case on hand. The trial court, for coming to that conclusion, referred to certain documents. The advertisement clearly declared that a member would get double the amount when after his enrolment, two members were enrolled under him and thereafter, 4 other persons were enrolled and after the enrolled 4 persons, 8 persons were enrolled under them. Thus, only after 14 persons under the first enrolled person become members under the Scheme, the first person would get Rs.1250 i.e. double the amount of Rs.625 (1+2+4+8). The trial court also noted that Kuriachan Chacko (Accused 1) who proposed the project for implementation, described how the project would work from which also it is clear that the double amount will be given to a person who purchases a unit only after 14 persons are enrolled subsequent to him." 41. We have carefully considered the rival contentions. It emerges that: a) In the instant case, the appellant ceased to be a Director of the company from 27.12.1997 whereas the alleged offences, if any, were committed during the period from 24.5.1998 to 17.9.1999. b) Admittedly, there are no allegations against the appellant in the First Information Report. c) The company had invited investment from the depositors to invest in the business/benefit funds after receiving due approval of the scheme from the Reserve Bank of India. Therefore, in any event, the element of cheating as alleged cannot be made out by any stretch of imagination. d) The complainant/respondent no.2 submitted in writing to this Court that he does not want to proceed against the appellant because according to him the appellant has been inadvertently included as an accused by the Investigating Officer. He further mentioned in the letter that he had already received 55% of the deposited amount from the Official Liquidator and he did not want to proceed against the appellant. e) Even assuming that there could have been a vicarious liability thrust on the appellant, even then there cannot be any such vicarious liability in absence of any allegations and material to show that the appellant was in-charge of or responsible for the conduct of the companys business which had given rise to the offence. From any angle of the matter, the appellant cannot be compelled to face the criminal trial in this case. | 1[ds]17. We have heard the learned counsel for the parties. The learned counsel appearing for the State has failed to point out any specific allegation or averment against the appellant. Admittedly, the appellant had resigned from the Board of Directors of the Company with effect from 27.12.1997 and therefore, cannot be held responsible for any activities of the company after he ceased to be a Director of the company. Even, according to the allegation of respondent no.2, no criminal case can be made out against the appellant20. It may be pertinent to mention that respondent no. 2 also filed an affidavit on 16.9.2009 before this Court. In this affidavit, reference has also been made to the affidavit filed before the High Court on 24.6.2009 in which he prayed that all cases against the Company and the Directors be withdrawn as he had already received 55% of the deposit amount from the Official Liquidator, High Court of Madras at Chennai. In the said affidavit filed before this Court, it was also mentioned that the appellant had resigned as Director from RPS Benefit Fund Ltd. on 8.12.1997 but his name had been included as one of the accused by the Investigating Officer. In this connection, he had also mentioned that the deponent was to withdraw the charges of cheating against all the Directors of the RPS Benefit Fund Ltd., including the appellant pending before the 10th Additional Chief Metropolitan Magistrate, Bangalore41. We have carefully considered the rival contentions. It emerges that:In the instant case, the appellant ceased to be a Director of the company from 27.12.1997 whereas the alleged offences, if any, were committed during the period from 24.5.1998 to 17.9.1999b) Admittedly, there are no allegations against the appellant in the First Information Reportc) The company had invited investment from the depositors to invest in the business/benefit funds after receiving due approval of the scheme from the Reserve Bank of India. Therefore, in any event, the element of cheating as alleged cannot be made out by any stretch of imaginationd) The complainant/respondent no.2 submitted in writing to this Court that he does not want to proceed against the appellant because according to him the appellant has been inadvertently included as an accused by the Investigating Officer. He further mentioned in the letter that he had already received 55% of the deposited amount from the Official Liquidator and he did not want to proceed against the appellante) Even assuming that there could have been a vicarious liability thrust on the appellant, even then there cannot be any such vicarious liability in absence of any allegations and material to show that the appellant wase of or responsible for the conduct of the companys business which had given rise to the offence. From any angle of the matter, the appellant cannot be compelled to face the criminal trial in this | 1 | 4,977 | 523 | ### 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:
in which this Court, while dealing with section 482 Cr.P.C. has held as under: "It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence". 37. The learned counsel for the State further submitted that the mere settlement of the case with the complainant on whose complaint the initial FIR was lodged does not dislodge a criminal prosecution by the State. Several other witnesses exist who would testify to the transactions and it would be up to the trial court to test the prosecution case. 38. Reliance was also placed on the case of Medchl Chemicals & Pharma (P) Ltd. v. Biological E.Ltd. & Ors.(2000) 3 SCC 269 , wherein this Court observed as under: "Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint". 39. It is further submitted by the counsel for the State that the complaint clearly disclosed the offences under sections 3, 4, 5 and 6 of the Act and also offence under section 420 IPC. 40. Reliance has been placed by the learned counsel for the State that this Court in Kuriachan Chacko & Others v. State of Kerala (2008) 8 SCC 708 , while dealing with the Prize Chits and Money Circulation Schemes (Banning) Act, has held that: "21. The Preamble of the 1978 Act declares that it has been enacted "to ban the promotion or conduct of prize chits and money circulation schemes and for matters connected therewith and incidental thereto". 22. Section 2 is legislative dictionary and defines certain terms. The phrase "money circulation scheme" is defined in clause (c) which reads as under: 2.(c) `money circulation scheme means any scheme, by whatever name called, for the making of quick or easy money, or for the receipt of any money or valuable thing as the consideration for a promise to pay money, on any event or contingency relative or applicable to the enrolment of members into the scheme, whether or not such money or thing is derived from the entrance money of the members of such scheme or periodical subscriptions; In this case, it was further held that: "39. We are unable to agree with the learned counsel. The courts below rightly held that prima facie case had been made out against the accused. Both the ingredients necessary for application of Section 2(c) of the Act are present in the case on hand. The trial court, for coming to that conclusion, referred to certain documents. The advertisement clearly declared that a member would get double the amount when after his enrolment, two members were enrolled under him and thereafter, 4 other persons were enrolled and after the enrolled 4 persons, 8 persons were enrolled under them. Thus, only after 14 persons under the first enrolled person become members under the Scheme, the first person would get Rs.1250 i.e. double the amount of Rs.625 (1+2+4+8). The trial court also noted that Kuriachan Chacko (Accused 1) who proposed the project for implementation, described how the project would work from which also it is clear that the double amount will be given to a person who purchases a unit only after 14 persons are enrolled subsequent to him." 41. We have carefully considered the rival contentions. It emerges that: a) In the instant case, the appellant ceased to be a Director of the company from 27.12.1997 whereas the alleged offences, if any, were committed during the period from 24.5.1998 to 17.9.1999. b) Admittedly, there are no allegations against the appellant in the First Information Report. c) The company had invited investment from the depositors to invest in the business/benefit funds after receiving due approval of the scheme from the Reserve Bank of India. Therefore, in any event, the element of cheating as alleged cannot be made out by any stretch of imagination. d) The complainant/respondent no.2 submitted in writing to this Court that he does not want to proceed against the appellant because according to him the appellant has been inadvertently included as an accused by the Investigating Officer. He further mentioned in the letter that he had already received 55% of the deposited amount from the Official Liquidator and he did not want to proceed against the appellant. e) Even assuming that there could have been a vicarious liability thrust on the appellant, even then there cannot be any such vicarious liability in absence of any allegations and material to show that the appellant was in-charge of or responsible for the conduct of the companys business which had given rise to the offence. From any angle of the matter, the appellant cannot be compelled to face the criminal trial in this case.
### Response:
1
### Explanation:
17. We have heard the learned counsel for the parties. The learned counsel appearing for the State has failed to point out any specific allegation or averment against the appellant. Admittedly, the appellant had resigned from the Board of Directors of the Company with effect from 27.12.1997 and therefore, cannot be held responsible for any activities of the company after he ceased to be a Director of the company. Even, according to the allegation of respondent no.2, no criminal case can be made out against the appellant20. It may be pertinent to mention that respondent no. 2 also filed an affidavit on 16.9.2009 before this Court. In this affidavit, reference has also been made to the affidavit filed before the High Court on 24.6.2009 in which he prayed that all cases against the Company and the Directors be withdrawn as he had already received 55% of the deposit amount from the Official Liquidator, High Court of Madras at Chennai. In the said affidavit filed before this Court, it was also mentioned that the appellant had resigned as Director from RPS Benefit Fund Ltd. on 8.12.1997 but his name had been included as one of the accused by the Investigating Officer. In this connection, he had also mentioned that the deponent was to withdraw the charges of cheating against all the Directors of the RPS Benefit Fund Ltd., including the appellant pending before the 10th Additional Chief Metropolitan Magistrate, Bangalore41. We have carefully considered the rival contentions. It emerges that:In the instant case, the appellant ceased to be a Director of the company from 27.12.1997 whereas the alleged offences, if any, were committed during the period from 24.5.1998 to 17.9.1999b) Admittedly, there are no allegations against the appellant in the First Information Reportc) The company had invited investment from the depositors to invest in the business/benefit funds after receiving due approval of the scheme from the Reserve Bank of India. Therefore, in any event, the element of cheating as alleged cannot be made out by any stretch of imaginationd) The complainant/respondent no.2 submitted in writing to this Court that he does not want to proceed against the appellant because according to him the appellant has been inadvertently included as an accused by the Investigating Officer. He further mentioned in the letter that he had already received 55% of the deposited amount from the Official Liquidator and he did not want to proceed against the appellante) Even assuming that there could have been a vicarious liability thrust on the appellant, even then there cannot be any such vicarious liability in absence of any allegations and material to show that the appellant wase of or responsible for the conduct of the companys business which had given rise to the offence. From any angle of the matter, the appellant cannot be compelled to face the criminal trial in this
|
Mranalini B. Shah & Another Vs. Bapalal Mohanlal Shah | in that behalf ... But where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12(3)(b) and defeat the landlords claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult to see how by any judicial valour discretion exercisable in favour of the tenant can be found in Section 12(3)(b) even where the conditions laid down by it are satisfied to be strictly confined within the limits prescribed for their operation. We think that Chagla, C.J., was doing nothing less than legislating in Kalidas Bhavan case (Kalidas Bhavan v. Bhagvandas Sakalchand, 60 Bom LR 1359) in converting the provisions of Section 12(3)(b) into a sort of discretionary jurisdiction of the court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quite clear that Section 12(3)(b) does not create any discretionary jurisdiction in the court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of courts.13. The above enunciation, clarifies beyond doubt that the provisions of clause (b) of Section 12(3) are mandatory, and must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlords claim for eviction on the ground of default in payment of rent is to be defeated. The word "regularly" in clause (b) of Section 12(3) has a significance of its own. It enjoins a payment or tender characterised by reasonable punctuality, that is to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, of clock-like precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. Thus, where the rent is payable by the month, the tenant must, if he wants to avail of the benefit of the latter part of clause (B), tender or pay it every month as it falls due, or at his discretion in advance. If he persistently defaults during the pendency of the suit or appeal in paying the rent, such as where he pays it at irregular intervals of 2 or 3 or 4 months - as is the case before us - the court has no discretion to treat what were manifestly irregular payments, as substantial compliance with the mandate of this clause, irrespective of the fact that by the time the judgment was pronounced all the arrears had been cleared by the tenant.14. Mr. Shroff contended that, in fact, the tenant had made two other payments, viz., Rs. 744.85 on February 4, 1970 and Rs. 183.52 on March 29, 1976 towards the municipal dues or taxes payable by the landlords and that if those items were adjusted towards the rent, the tenant would be deemed to have paid the rent, in advance, for entire period of the pendency of the appeal. In support of this contention, the respondent has filed an affidavit in this Court. This claim, which has now been made for the first time by the tenant, has been controverted by the landlord in his rejoinder affidavit filed before us. We, therefore, decline to take it into consideration.15. We need not dilate on the matter further, suffice it to say that on the basis of the facts found by the courts below and in the light of this Courts decision in Ganpat Ladha v. Sashikant Vishnu Shinde ((1978) 2 SCC 573 , 579, 580), the question posed at the commencement of the judgment must be answered in favour of the appellant and against the respondent. In the result, the appeal is set aside and a decree for possession of the premises in favour of the appellant is passed.16. At this stage, Mr. Shroff requests that the respondent may be granted two years time to vacate the premises on the basis of the written undertaking of his client, which he has now filed and which has been agreed to by the appellants counsel. Of the undertaking filed by Mr. Shroff, the agreed portion is to the following effect :I shall vacate and hand over to the petitioners peaceful possession of the suit premises bearing M.C. No. 802/12 situated in Panchbhais Pole, Ahmedabad on the expiry of two years from April 30, 1978 i.e. on or before April 30, 1980 (thirtieth day of April, one thousand nine hundred and eighty) and in the meanwhile I shall pay to the petitioners the monthly rent of Rs. 65 for occupation of the suit premises. I further undertake not to part with the possession of the suit premises. I further undertake not to part with the possession and create any sub-tenancy or encumbrances on the premises.17. In paragraph 3 of his undertaking, the respondent has made a counter-claim for credit of the two items Rs. 744.85 and Rs. 183.52 which he says, he has paid towards municipal taxes and cess on behalf of the appellant-landlord. The appellants on the other hand, claim about Rs. 300 as education cess from the tenant. The parties agree before us that these claims and counter-claims may be decided within a period of six months from today by the court of the first instance - the trial Court. Subject to this condition, any amount found payable by the trial Court with regard to these counter-claims may be adjusted towards rent or shall have to be paid by the party by whom it is found due. | 1[ds]It is clear to us that the Act interferes with the landlords right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlords power to evict them, in these days of scarcity of accommodation, by asserting his superior right in property or trying to exploit his position by extracting too high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf ... But where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12(3)(b) and defeat the landlords claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult to see how by any judicial valour discretion exercisable in favour of the tenant can be found in Section 12(3)(b) even where the conditions laid down by it are satisfied to be strictly confined within the limits prescribed for their operation. We think that Chagla, C.J., was doing nothing less than legislating in Kalidas Bhavan case (Kalidas Bhavan v. Bhagvandas Sakalchand, 60 Bom LR 1359) in converting the provisions of Section 12(3)(b) into a sort of discretionary jurisdiction of the court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quite clear that Section 12(3)(b) does not create any discretionary jurisdiction in the court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of courts.13. The above enunciation, clarifies beyond doubt that the provisions of clause (b) of Section 12(3) are mandatory, and must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlords claim for eviction on the ground of default in payment of rent is to be defeated. The word "regularly" in clause (b) of Section 12(3) has a significance of its own. It enjoins a payment or tender characterised by reasonable punctuality, that is to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, ofprecision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. Thus, where the rent is payable by the month, the tenant must, if he wants to avail of the benefit of the latter part of clause (B), tender or pay it every month as it falls due, or at his discretion in advance. If he persistently defaults during the pendency of the suit or appeal in paying the rent, such as where he pays it at irregular intervals of 2 or 3 or 4 monthsas is the case before usthe court has no discretion to treat what were manifestly irregular payments, as substantial compliance with the mandate of this clause, irrespective of the fact that by the time the judgment was pronounced all the arrears had been cleared by theis clear to us that the Act interferes with the landlords right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlords power to evict them, in these days of scarcity of accommodation, by asserting his superior right in property or trying to exploit his position by extracting too high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf ... But where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12(3)(b) and defeat the landlords claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult to see how by any judicial valour discretion exercisable in favour of the tenant can be found in Section 12(3)(b) even where the conditions laid down by it are satisfied to be strictly confined within the limits prescribed for their operation. We think that Chagla, C.J., was doing nothing less than legislating in Kalidas Bhavan case (Kalidas Bhavan v. Bhagvandas Sakalchand, 60 Bom LR 1359) in converting the provisions of Section 12(3)(b) into a sort of discretionary jurisdiction of the court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quite clear that Section 12(3)(b) does not create any discretionary jurisdiction in the court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of courts. | 1 | 2,510 | 1,140 | ### 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:
in that behalf ... But where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12(3)(b) and defeat the landlords claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult to see how by any judicial valour discretion exercisable in favour of the tenant can be found in Section 12(3)(b) even where the conditions laid down by it are satisfied to be strictly confined within the limits prescribed for their operation. We think that Chagla, C.J., was doing nothing less than legislating in Kalidas Bhavan case (Kalidas Bhavan v. Bhagvandas Sakalchand, 60 Bom LR 1359) in converting the provisions of Section 12(3)(b) into a sort of discretionary jurisdiction of the court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quite clear that Section 12(3)(b) does not create any discretionary jurisdiction in the court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of courts.13. The above enunciation, clarifies beyond doubt that the provisions of clause (b) of Section 12(3) are mandatory, and must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlords claim for eviction on the ground of default in payment of rent is to be defeated. The word "regularly" in clause (b) of Section 12(3) has a significance of its own. It enjoins a payment or tender characterised by reasonable punctuality, that is to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, of clock-like precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. Thus, where the rent is payable by the month, the tenant must, if he wants to avail of the benefit of the latter part of clause (B), tender or pay it every month as it falls due, or at his discretion in advance. If he persistently defaults during the pendency of the suit or appeal in paying the rent, such as where he pays it at irregular intervals of 2 or 3 or 4 months - as is the case before us - the court has no discretion to treat what were manifestly irregular payments, as substantial compliance with the mandate of this clause, irrespective of the fact that by the time the judgment was pronounced all the arrears had been cleared by the tenant.14. Mr. Shroff contended that, in fact, the tenant had made two other payments, viz., Rs. 744.85 on February 4, 1970 and Rs. 183.52 on March 29, 1976 towards the municipal dues or taxes payable by the landlords and that if those items were adjusted towards the rent, the tenant would be deemed to have paid the rent, in advance, for entire period of the pendency of the appeal. In support of this contention, the respondent has filed an affidavit in this Court. This claim, which has now been made for the first time by the tenant, has been controverted by the landlord in his rejoinder affidavit filed before us. We, therefore, decline to take it into consideration.15. We need not dilate on the matter further, suffice it to say that on the basis of the facts found by the courts below and in the light of this Courts decision in Ganpat Ladha v. Sashikant Vishnu Shinde ((1978) 2 SCC 573 , 579, 580), the question posed at the commencement of the judgment must be answered in favour of the appellant and against the respondent. In the result, the appeal is set aside and a decree for possession of the premises in favour of the appellant is passed.16. At this stage, Mr. Shroff requests that the respondent may be granted two years time to vacate the premises on the basis of the written undertaking of his client, which he has now filed and which has been agreed to by the appellants counsel. Of the undertaking filed by Mr. Shroff, the agreed portion is to the following effect :I shall vacate and hand over to the petitioners peaceful possession of the suit premises bearing M.C. No. 802/12 situated in Panchbhais Pole, Ahmedabad on the expiry of two years from April 30, 1978 i.e. on or before April 30, 1980 (thirtieth day of April, one thousand nine hundred and eighty) and in the meanwhile I shall pay to the petitioners the monthly rent of Rs. 65 for occupation of the suit premises. I further undertake not to part with the possession of the suit premises. I further undertake not to part with the possession and create any sub-tenancy or encumbrances on the premises.17. In paragraph 3 of his undertaking, the respondent has made a counter-claim for credit of the two items Rs. 744.85 and Rs. 183.52 which he says, he has paid towards municipal taxes and cess on behalf of the appellant-landlord. The appellants on the other hand, claim about Rs. 300 as education cess from the tenant. The parties agree before us that these claims and counter-claims may be decided within a period of six months from today by the court of the first instance - the trial Court. Subject to this condition, any amount found payable by the trial Court with regard to these counter-claims may be adjusted towards rent or shall have to be paid by the party by whom it is found due.
### Response:
1
### Explanation:
It is clear to us that the Act interferes with the landlords right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlords power to evict them, in these days of scarcity of accommodation, by asserting his superior right in property or trying to exploit his position by extracting too high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf ... But where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12(3)(b) and defeat the landlords claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult to see how by any judicial valour discretion exercisable in favour of the tenant can be found in Section 12(3)(b) even where the conditions laid down by it are satisfied to be strictly confined within the limits prescribed for their operation. We think that Chagla, C.J., was doing nothing less than legislating in Kalidas Bhavan case (Kalidas Bhavan v. Bhagvandas Sakalchand, 60 Bom LR 1359) in converting the provisions of Section 12(3)(b) into a sort of discretionary jurisdiction of the court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quite clear that Section 12(3)(b) does not create any discretionary jurisdiction in the court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of courts.13. The above enunciation, clarifies beyond doubt that the provisions of clause (b) of Section 12(3) are mandatory, and must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlords claim for eviction on the ground of default in payment of rent is to be defeated. The word "regularly" in clause (b) of Section 12(3) has a significance of its own. It enjoins a payment or tender characterised by reasonable punctuality, that is to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, ofprecision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. Thus, where the rent is payable by the month, the tenant must, if he wants to avail of the benefit of the latter part of clause (B), tender or pay it every month as it falls due, or at his discretion in advance. If he persistently defaults during the pendency of the suit or appeal in paying the rent, such as where he pays it at irregular intervals of 2 or 3 or 4 monthsas is the case before usthe court has no discretion to treat what were manifestly irregular payments, as substantial compliance with the mandate of this clause, irrespective of the fact that by the time the judgment was pronounced all the arrears had been cleared by theis clear to us that the Act interferes with the landlords right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlords power to evict them, in these days of scarcity of accommodation, by asserting his superior right in property or trying to exploit his position by extracting too high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf ... But where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12(3)(b) and defeat the landlords claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult to see how by any judicial valour discretion exercisable in favour of the tenant can be found in Section 12(3)(b) even where the conditions laid down by it are satisfied to be strictly confined within the limits prescribed for their operation. We think that Chagla, C.J., was doing nothing less than legislating in Kalidas Bhavan case (Kalidas Bhavan v. Bhagvandas Sakalchand, 60 Bom LR 1359) in converting the provisions of Section 12(3)(b) into a sort of discretionary jurisdiction of the court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quite clear that Section 12(3)(b) does not create any discretionary jurisdiction in the court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of courts.
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C. T. Senthilnathan Chettiar Vs. State of Madras | settlor and/or if any other circumstances intervene requiring the cancellation or alteration of this deed of settlement." 2. The Agricultural Income-tax Officer included the income from the lands settled under this deed in the hands of the assessee. The assessee filed a revision before the Commissioner of Agricultural Income-tax who held that the document evidenced a revocable transfer and the settled lands were an asset remaining the property of the settlor within the meaning of section 9(1) of the Act. He refused to exclude the income from the lands settled in the deed from the assessable income of the assessee. The assessee then filed a revision under section 54(1) of the Act to the High Court. The High Court agreeing with the Commissioner held that the settlement was hit by section 9(1) of the Act. The assessee having obtained leave from this court, the appeal is now before us. 3. We may mention that this court at the time of hearing of the application under article 136 gave liberty to the appellant to urge additional grounds, one ground being that section 9(1) of the Act was ultra vires the legislature and also violative of article 14 of the Constitution of India. The relevant provisions of section 9(1) of the Act, which are in terms similar to section 16(1)(c) of the Indian Income-tax Act, 1922, are as follows " 9. (1) In computing the total agricultural income of an assessee, all agricultural income arising to any person by virtue of a settlement or disposition, whether revocable or not, and whether effected before or after the commencement of this Act, from assets remaining the property of the settler or disponer, shall be deemed to be the agricultural income of the settlor or disponer, and all agricultural income arising to any person by virtue of a revocable transfer of assets shall be deemed to be agricultural income of the transferorrovided that, for the purposes of this sub-section, a settlement, disposition or transfer shall be deemed to be revocable if it contains any provision for the retransfer directly or indirectly of the agricultural income or assets to the settlors disponer or transferor or in any way gives the settlor, disponer or transferor a right to reassume power directly or indirectly over the agricultural income or assets Provided further that the expression settlement or disposition shall, for the purposes of this sub-section, include any disposition, trust, covenant, agreement or arrangement and the expression settlor or disponer in relation to a settlement or disposition shall include any person by whom the settlement or disposition was made Provided also that this sub-section shall not apply to any agricultural income arising to any person by virtue of a settlement or disposition which is not revocable for a period exceeding six years or during the lifetime of the person and from which agricultural income the settlor or disponer derives no direct or indirect benefit but that the settlor shall be liable to be assessed on the said agricultural income as and when the power to revoke arises to him. " 4. The learned counsel for the appellant contends that the case was governed by the third proviso to section 9(1) and that till the power of revocation was exercised the income should not be assessed in the hands of the assessee. He further contends that the settlement deed creates two interests, viz., a life interest coupled with and followed up by an absolute interest created in favour of the children of the settlor through the settlee, and even if the initial transfer in favour of Vatsala is terminated under the deed, the ultimate transfer gets accelerated ; in other words an absolute estate becomes vested in the children. The learned counsel also relies on section 126 of the Transfer of Property ActIn our opinion, the High Court was right in holding that the settlement deed amounts to a revocable transfer of assets within section 9(1), proviso 1. The settlement deed specifically reserves power to the settlor to cancel or revoke or alter the settlement in any circumstances which require the cancellation or alteration of the deed of settlement. It seems to us that this clause falls squarely within proviso 1, for the assessees could at any time reassume power over the assets or the agricultural income by just cancelling or altering the terms of the deed 5. We are unable to appreciate how section 126 of the Transfer of Property Act helps the assessee. If section 126 is applicable, it is quite clear that the gift would be wholly void. But we are not concerned with this question. We assume that the gift is valid, but the settlor has specifically retained the power to cancel or revoke or alter the settlement 6. The learned counsel then urges that section 9(1) of the Act is void. He points out that a similar question regarding the validity of section 16(1)(c) of the Indian Income-tax Act, 1922, was left open in Sardar Baldev Singh v. Commissioner of Income-tax and Balaji v. Income-tax Officer, Special Investigation Circle, Akola. But we are unable to allow him to raise this point because this court has held in K. S. Venkataraman & Co. v. State of Madras that the authorities under a taxing statute are not concerned with the validity of the taxing provisions and the question of ultra vires is foreign to the scope of their jurisdiction. As no such point could be raised before the income-tax authorities, neither the High Court nor the Supreme Court can go into these questions in at revision or reference from the decision of those authorities. This case was followed in Commissioner of Income-tax v. Straw Products LtdThere is nothing in article 142 of the Constitution relied on by the counsel to enable us to deal with the question in the present appeal. Accordingly, we cannot allow him to urge this point before us, but it would be open to him to raise the point in any appropriate proceeding | 0[ds]In our opinion, the High Court was right in holding that the settlement deed amounts to a revocable transfer of assets within section 9(1), proviso 1. The settlement deed specifically reserves power to the settlor to cancel or revoke or alter the settlement in any circumstances which require the cancellation or alteration of the deed of settlement. It seems to us that this clause falls squarely within proviso 1, for the assessees could at any time reassume power over the assets or the agricultural income by just cancelling or altering the terms of the deed5. We are unable to appreciate how section 126 of the Transfer of Property Act helps the assessee. If section 126 is applicable, it is quite clear that the gift would be wholly void. But we are not concerned with this question. We assume that the gift is valid, but the settlor has specifically retained the power to cancel or revoke or alter the settlementBut we are unable to allow him to raise this point because this court has held in K. S. Venkataraman & Co. v. State of Madras that the authorities under a taxing statute are not concerned with the validity of the taxing provisions and the question of ultra vires is foreign to the scope of their jurisdiction. As no such point could be raised before thex authorities, neither the High Court nor the Supreme Court can go into these questions in at revision or reference from the decision of those authorities. This case was followed in Commissioner ofx v. Straw Products LtdThere is nothing in article 142 of the Constitution relied on by the counsel to enable us to deal with the question in the present appeal. Accordingly, we cannot allow him to urge this point before us, but it would be open to him to raise the point in any appropriate proceeding | 0 | 1,510 | 336 | ### 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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settlor and/or if any other circumstances intervene requiring the cancellation or alteration of this deed of settlement." 2. The Agricultural Income-tax Officer included the income from the lands settled under this deed in the hands of the assessee. The assessee filed a revision before the Commissioner of Agricultural Income-tax who held that the document evidenced a revocable transfer and the settled lands were an asset remaining the property of the settlor within the meaning of section 9(1) of the Act. He refused to exclude the income from the lands settled in the deed from the assessable income of the assessee. The assessee then filed a revision under section 54(1) of the Act to the High Court. The High Court agreeing with the Commissioner held that the settlement was hit by section 9(1) of the Act. The assessee having obtained leave from this court, the appeal is now before us. 3. We may mention that this court at the time of hearing of the application under article 136 gave liberty to the appellant to urge additional grounds, one ground being that section 9(1) of the Act was ultra vires the legislature and also violative of article 14 of the Constitution of India. The relevant provisions of section 9(1) of the Act, which are in terms similar to section 16(1)(c) of the Indian Income-tax Act, 1922, are as follows " 9. (1) In computing the total agricultural income of an assessee, all agricultural income arising to any person by virtue of a settlement or disposition, whether revocable or not, and whether effected before or after the commencement of this Act, from assets remaining the property of the settler or disponer, shall be deemed to be the agricultural income of the settlor or disponer, and all agricultural income arising to any person by virtue of a revocable transfer of assets shall be deemed to be agricultural income of the transferorrovided that, for the purposes of this sub-section, a settlement, disposition or transfer shall be deemed to be revocable if it contains any provision for the retransfer directly or indirectly of the agricultural income or assets to the settlors disponer or transferor or in any way gives the settlor, disponer or transferor a right to reassume power directly or indirectly over the agricultural income or assets Provided further that the expression settlement or disposition shall, for the purposes of this sub-section, include any disposition, trust, covenant, agreement or arrangement and the expression settlor or disponer in relation to a settlement or disposition shall include any person by whom the settlement or disposition was made Provided also that this sub-section shall not apply to any agricultural income arising to any person by virtue of a settlement or disposition which is not revocable for a period exceeding six years or during the lifetime of the person and from which agricultural income the settlor or disponer derives no direct or indirect benefit but that the settlor shall be liable to be assessed on the said agricultural income as and when the power to revoke arises to him. " 4. The learned counsel for the appellant contends that the case was governed by the third proviso to section 9(1) and that till the power of revocation was exercised the income should not be assessed in the hands of the assessee. He further contends that the settlement deed creates two interests, viz., a life interest coupled with and followed up by an absolute interest created in favour of the children of the settlor through the settlee, and even if the initial transfer in favour of Vatsala is terminated under the deed, the ultimate transfer gets accelerated ; in other words an absolute estate becomes vested in the children. The learned counsel also relies on section 126 of the Transfer of Property ActIn our opinion, the High Court was right in holding that the settlement deed amounts to a revocable transfer of assets within section 9(1), proviso 1. The settlement deed specifically reserves power to the settlor to cancel or revoke or alter the settlement in any circumstances which require the cancellation or alteration of the deed of settlement. It seems to us that this clause falls squarely within proviso 1, for the assessees could at any time reassume power over the assets or the agricultural income by just cancelling or altering the terms of the deed 5. We are unable to appreciate how section 126 of the Transfer of Property Act helps the assessee. If section 126 is applicable, it is quite clear that the gift would be wholly void. But we are not concerned with this question. We assume that the gift is valid, but the settlor has specifically retained the power to cancel or revoke or alter the settlement 6. The learned counsel then urges that section 9(1) of the Act is void. He points out that a similar question regarding the validity of section 16(1)(c) of the Indian Income-tax Act, 1922, was left open in Sardar Baldev Singh v. Commissioner of Income-tax and Balaji v. Income-tax Officer, Special Investigation Circle, Akola. But we are unable to allow him to raise this point because this court has held in K. S. Venkataraman & Co. v. State of Madras that the authorities under a taxing statute are not concerned with the validity of the taxing provisions and the question of ultra vires is foreign to the scope of their jurisdiction. As no such point could be raised before the income-tax authorities, neither the High Court nor the Supreme Court can go into these questions in at revision or reference from the decision of those authorities. This case was followed in Commissioner of Income-tax v. Straw Products LtdThere is nothing in article 142 of the Constitution relied on by the counsel to enable us to deal with the question in the present appeal. Accordingly, we cannot allow him to urge this point before us, but it would be open to him to raise the point in any appropriate proceeding
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In our opinion, the High Court was right in holding that the settlement deed amounts to a revocable transfer of assets within section 9(1), proviso 1. The settlement deed specifically reserves power to the settlor to cancel or revoke or alter the settlement in any circumstances which require the cancellation or alteration of the deed of settlement. It seems to us that this clause falls squarely within proviso 1, for the assessees could at any time reassume power over the assets or the agricultural income by just cancelling or altering the terms of the deed5. We are unable to appreciate how section 126 of the Transfer of Property Act helps the assessee. If section 126 is applicable, it is quite clear that the gift would be wholly void. But we are not concerned with this question. We assume that the gift is valid, but the settlor has specifically retained the power to cancel or revoke or alter the settlementBut we are unable to allow him to raise this point because this court has held in K. S. Venkataraman & Co. v. State of Madras that the authorities under a taxing statute are not concerned with the validity of the taxing provisions and the question of ultra vires is foreign to the scope of their jurisdiction. As no such point could be raised before thex authorities, neither the High Court nor the Supreme Court can go into these questions in at revision or reference from the decision of those authorities. This case was followed in Commissioner ofx v. Straw Products LtdThere is nothing in article 142 of the Constitution relied on by the counsel to enable us to deal with the question in the present appeal. Accordingly, we cannot allow him to urge this point before us, but it would be open to him to raise the point in any appropriate proceeding
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Jolly Technologies Private Limited Vs. Wadkar, Assistant Commissioner of Police, Powai Division & Others | line. It is the case of the petitioner that Jolly international maintains all copyright with regard to the product line and is protected by United States International Copyright laws.2.According to the petitioner, one Ms.Sudha Iyer who has filed an intervention application in this case was employed by the company as a trainee on trial basis. Ms.Sudha Iyer had entered into an agreement with the petitioner promising that all secrets of the company would be kept intact. According to the petitioner relying upon her representation, Ms.Sudha Iyer was assigned the work as a trainee to enable her to learn various technologies developed by the company. According to the petitioner, as per the agreement she was prohibited from violating confidentiality and she was required to abide by all the rules and policies of the petitioner.3.According to the petitioner on 19/07/2004, Ms.Sudha Iyer was informed that she had been moved from the Print Studio research and development project to a new project and she should no longer work on any Print Studio source code or access any document related to that project. However, on 19/07/2004 Ms.Sudha Iyer exported the confidential files that she had obtained in the company via her personal e-mail account. She moved various confidential files of the company from the Managers account to her personal account by way of which she could open and download the confidential files of the company from any source outside the company.4.According to the petitioner as Ms.Sudha Iyer moved the confidential information saved under the Prints Studio project including the important information related to the Identity Cards of Navy and Army of the United States and forwarded it by e-mails to her own e-mail account, the petitioner filed a complaint with the Cyber Investigation Cell at Worli. As the police did not register the FIR, the petitioner has filed this petition praying that the police be directed to register the offence in respect of the petitioners complaint.5.We have heard Mr.Marwadi, the learned counsel appearing for the petitioner. Mr.Marwadi reiterated the case of the petitioner stated in the petition. He submitted that the police have not registered the offence though it is disclosed in the complaint. They have not carried out the necessary inquiry. They have not seized the computer used by Ms.Sudha Iyer. He submitted that Ms.Sudha Iyer has committed the offence of hacking under Section 66 of the Information Technology Act-2000 (for short,"the said Act"). There is a likelihood of wrongful loss to the petitioner because the value of the information which is removed by Ms.Sudha Iyer has been diminished. He submitted that Ms. Sudha Iyer has removed some information without the consent of the petitioner and with the connivance of the Manager and therefore, the offence under Section 66 of the said Act is clearly made out. Mr.Marwadi contended that no attempt was made by the police to trace the information forwarded by Ms.Sudha Iyer to her e-mail account. Mr.Marwadi submitted that on 13/01/2005 the petitioner has received a letter issued by the investigating officer stating that no offence under the said Act is disclosed. Mr.Marwadi submitted that the police have failed in their duty and therefore, appropriate directions be issued to the police.6.We have also heard the learned APP Mr.Mhaispurkar. He submitted that the allegation that the police have not carried out the proper inquiry, is baseless. He drew our attention to the affidavit of Mr.Pravin Chinchalkar, Inspector of Police, Cyber Crime Investigation Cell, Crime Branch, Criminal Investigation Department, Mumbai. He submitted that under Section 65 of the said Act only concealing, destroying or altering a source code which is required to be maintained by law, amounts to an offence. The learned APP pointed out that the inquiry conducted by the police does not disclose any offence under Sections 65 or 66 of the said Act. He submitted that under Section 43 of the said Act, down-loading, copying or extracting any data, computer data base or information from such computer or computer system without permission of the owner or any other person who is in-charge of the Computer is a civil wrong and remedy of damages by way of compensation is provided. He submitted that no Criminal offence is disclosed during the inquiry and if there is any civil wrong, the petitioner can always approach the Civil Court for compensation. The learned APP submitted that the petition is therefore liable to be dismissed.7.We have considered the submissions of both sides in the light of the provisions of the said Act. Complaint of the petitioner is dated 20/07/2004. It is the case of the police that the inquiry conducted on the basis of the material furnished by the petitioner, does not disclose any offence under the said Act. The affidavit of Mr.Chinchalkar filed during the pendency of the inquiry indicates that according to the police, the petitioner had not furnished any particulars pertaining to the Software i.e. allegedly the article of theft. As regards the copyright violation no particulars of the alleged software, the ownership of the same and the particulars of the file have been furnished by the petitioner, its owner and employees. No specific information with regard to the actual software or source code to which the petitioner is claiming proprietary right has been furnished by the petitioner. The petitioners case, however, is that all necessary particulars and information has been furnished by the petitioner to the police.8.In the peculiar facts and circumstances of the case and considering the fact that the complaint of the petitioner is of 2004, we are not inclined to issue any directions to the police as prayed for in the petition. In our opinion, however, the petitioner cannot be prevented from filing any private complaint on the basis of the requisite material and information, before a Magistrate having jurisdiction to entertain it if the petitioner so desires. The petitioner can also, adopt any appropriate proceedings to claim any damages if, the petitioner so desires. We have not expressed any opinion on the merits of the case. | 0[ds]The affidavit of Mr.Chinchalkar filed during the pendency of the inquiry indicates that according to the police, the petitioner had not furnished any particulars pertaining to the Software i.e. allegedly the article of theft. As regards the copyright violation no particulars of the alleged software, the ownership of the same and the particulars of the file have been furnished by the petitioner, its owner and employees. No specific information with regard to the actual software or source code to which the petitioner is claiming proprietary right has been furnished by the petitioner. The petitioners case, however, is that all necessary particulars and information has been furnished by the petitioner to the police.8.In the peculiar facts and circumstances of the case and considering the fact that the complaint of the petitioner is of 2004, we are not inclined to issue any directions to the police as prayed for in the petition. In our opinion, however, the petitioner cannot be prevented from filing any private complaint on the basis of the requisite material and information, before a Magistrate having jurisdiction to entertain it if the petitioner so desires. The petitioner can also, adopt any appropriate proceedings to claim any damages if, the petitioner so desires. We have not expressed any opinion on the merits of the case. | 0 | 1,126 | 239 | ### 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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line. It is the case of the petitioner that Jolly international maintains all copyright with regard to the product line and is protected by United States International Copyright laws.2.According to the petitioner, one Ms.Sudha Iyer who has filed an intervention application in this case was employed by the company as a trainee on trial basis. Ms.Sudha Iyer had entered into an agreement with the petitioner promising that all secrets of the company would be kept intact. According to the petitioner relying upon her representation, Ms.Sudha Iyer was assigned the work as a trainee to enable her to learn various technologies developed by the company. According to the petitioner, as per the agreement she was prohibited from violating confidentiality and she was required to abide by all the rules and policies of the petitioner.3.According to the petitioner on 19/07/2004, Ms.Sudha Iyer was informed that she had been moved from the Print Studio research and development project to a new project and she should no longer work on any Print Studio source code or access any document related to that project. However, on 19/07/2004 Ms.Sudha Iyer exported the confidential files that she had obtained in the company via her personal e-mail account. She moved various confidential files of the company from the Managers account to her personal account by way of which she could open and download the confidential files of the company from any source outside the company.4.According to the petitioner as Ms.Sudha Iyer moved the confidential information saved under the Prints Studio project including the important information related to the Identity Cards of Navy and Army of the United States and forwarded it by e-mails to her own e-mail account, the petitioner filed a complaint with the Cyber Investigation Cell at Worli. As the police did not register the FIR, the petitioner has filed this petition praying that the police be directed to register the offence in respect of the petitioners complaint.5.We have heard Mr.Marwadi, the learned counsel appearing for the petitioner. Mr.Marwadi reiterated the case of the petitioner stated in the petition. He submitted that the police have not registered the offence though it is disclosed in the complaint. They have not carried out the necessary inquiry. They have not seized the computer used by Ms.Sudha Iyer. He submitted that Ms.Sudha Iyer has committed the offence of hacking under Section 66 of the Information Technology Act-2000 (for short,"the said Act"). There is a likelihood of wrongful loss to the petitioner because the value of the information which is removed by Ms.Sudha Iyer has been diminished. He submitted that Ms. Sudha Iyer has removed some information without the consent of the petitioner and with the connivance of the Manager and therefore, the offence under Section 66 of the said Act is clearly made out. Mr.Marwadi contended that no attempt was made by the police to trace the information forwarded by Ms.Sudha Iyer to her e-mail account. Mr.Marwadi submitted that on 13/01/2005 the petitioner has received a letter issued by the investigating officer stating that no offence under the said Act is disclosed. Mr.Marwadi submitted that the police have failed in their duty and therefore, appropriate directions be issued to the police.6.We have also heard the learned APP Mr.Mhaispurkar. He submitted that the allegation that the police have not carried out the proper inquiry, is baseless. He drew our attention to the affidavit of Mr.Pravin Chinchalkar, Inspector of Police, Cyber Crime Investigation Cell, Crime Branch, Criminal Investigation Department, Mumbai. He submitted that under Section 65 of the said Act only concealing, destroying or altering a source code which is required to be maintained by law, amounts to an offence. The learned APP pointed out that the inquiry conducted by the police does not disclose any offence under Sections 65 or 66 of the said Act. He submitted that under Section 43 of the said Act, down-loading, copying or extracting any data, computer data base or information from such computer or computer system without permission of the owner or any other person who is in-charge of the Computer is a civil wrong and remedy of damages by way of compensation is provided. He submitted that no Criminal offence is disclosed during the inquiry and if there is any civil wrong, the petitioner can always approach the Civil Court for compensation. The learned APP submitted that the petition is therefore liable to be dismissed.7.We have considered the submissions of both sides in the light of the provisions of the said Act. Complaint of the petitioner is dated 20/07/2004. It is the case of the police that the inquiry conducted on the basis of the material furnished by the petitioner, does not disclose any offence under the said Act. The affidavit of Mr.Chinchalkar filed during the pendency of the inquiry indicates that according to the police, the petitioner had not furnished any particulars pertaining to the Software i.e. allegedly the article of theft. As regards the copyright violation no particulars of the alleged software, the ownership of the same and the particulars of the file have been furnished by the petitioner, its owner and employees. No specific information with regard to the actual software or source code to which the petitioner is claiming proprietary right has been furnished by the petitioner. The petitioners case, however, is that all necessary particulars and information has been furnished by the petitioner to the police.8.In the peculiar facts and circumstances of the case and considering the fact that the complaint of the petitioner is of 2004, we are not inclined to issue any directions to the police as prayed for in the petition. In our opinion, however, the petitioner cannot be prevented from filing any private complaint on the basis of the requisite material and information, before a Magistrate having jurisdiction to entertain it if the petitioner so desires. The petitioner can also, adopt any appropriate proceedings to claim any damages if, the petitioner so desires. We have not expressed any opinion on the merits of the case.
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### Explanation:
The affidavit of Mr.Chinchalkar filed during the pendency of the inquiry indicates that according to the police, the petitioner had not furnished any particulars pertaining to the Software i.e. allegedly the article of theft. As regards the copyright violation no particulars of the alleged software, the ownership of the same and the particulars of the file have been furnished by the petitioner, its owner and employees. No specific information with regard to the actual software or source code to which the petitioner is claiming proprietary right has been furnished by the petitioner. The petitioners case, however, is that all necessary particulars and information has been furnished by the petitioner to the police.8.In the peculiar facts and circumstances of the case and considering the fact that the complaint of the petitioner is of 2004, we are not inclined to issue any directions to the police as prayed for in the petition. In our opinion, however, the petitioner cannot be prevented from filing any private complaint on the basis of the requisite material and information, before a Magistrate having jurisdiction to entertain it if the petitioner so desires. The petitioner can also, adopt any appropriate proceedings to claim any damages if, the petitioner so desires. We have not expressed any opinion on the merits of the case.
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State Of Kerala & Another Vs. Nilgiri Tea Estates Ltd | or cinnamom and lands used for any purpose ancillary to the cultivation such crops or for the preparation of the same for the market.Explanation-Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall b e deemed to be lands used for purposes ancillary to the cultivation of such crops;(C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with an y other agricultural crop and(D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings;(ii) any forest nor owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did not apply, including waste lands which are enclaves within wooded areas.(2) in relation to the remaining areas in the State of Kerala any forest not owned by the Government including waste lands which are enclaves within wooded areas:Explanation-For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs;The Forest Tribunal in this case held, inter alia, in its order as follows:-"The entire property in O.A. 39/79 (26.90 hectares corresponding to 66.50 acres) admittedly contains eucalyptus trees raised by the petitioner as also cardamom plants here and there. The Superintendent in charge of the petitioner estate had deposed to that effect. The Range officer examined as R.W. 1 has stated that the disputed land on O.A. 39/79 lie in two bits and in both the bits there are eucalyptus trees raised by the petitioner, that they are aged between 12 to 15 years and are having a height of about 30 ft. It is also stated by him that at present there are cardamom plants but they are raised after 1971."The Tribunal went on to record as follows:"But, the respondents have conceded that those trees are not o f natural growth but they have been grown there with human skill, expenses and labour. That these trees are planted for purposes of fuel necessary for the manufacture of tea also admits of no doubt."The tribunal concluded by stating:-"The question whether eucalyptus plantations raised in a tea estate would be a forest or not has no bearing to the extent of the cultivation. It should be remembered that eucalyptus trees were raised in the instant case not for raising a forest but for supply of fuel necessary for the manufacture of tea. Hence I have no hesitation to come to the conclusion that the areas planted with eucalyptus trees in a tea estate do not form part of a vested forest or a private forest and therefore it is excluded from the purview of Act 26/71. In other words, the entire lands involved in O.A. 39/79 and 20 acres out of the property shown as item 1 in O.A. 146/78 which are eucalyptus plantations are not private forest and they have not vested in the Government."On this basis, the High Court ca me to conclusion that the Tribunal was right. The High Court in its order observed:-"The question whether forest lands planted with eucalyptus by employing agricultural operations would be forest was considered by this court in t he decision of a Division Bench reported in State of Kerala v. Anglo American Direct Tea Trading Co. Ltd., [1980] KLT 215. The same question was considered over again by a Full Bench of this Court in the decision reported in State of Kerala. v. A Moosa Haji, [1984] KLT 494. In the former decision, it was held:-"As we have indicated in the absence of a definition of the term forest in Act 26 of 1971 we should take notice of the general meaning of the term as used in common parlance. Whether one would understand a eucalyptus plantation within a Tea estate or adjoining a Tea estate as forest in common parlance would necessarily be the test. This calls for consideration of the scope of the term forest"In the contest in which the term "Private forests" has been used in Act 26 of 1971, it is evident that it applies to lands other than those on which human skill, labour and resources have been spent for agricultural operations.In the light of what we have adverted to we do not think that the State has succeeded in establishing that the land in which eucalyptus has been planted in the Tea plantations could be said to be forest land and if so we should agree with the decision of the Forest Tribunal that it would be outside the purview of the vesting provisions in Act 26 of 1971. " 2. We are of the opinion that in view of the Finding recorded by the Tribunal, the decision and judgment of the High Court cannot be impugned. It is instructive that in respect of proceedings initiated under the Land Reforms Act, this Court in Malankara Rubber and Product Co. &Ors. etc. v. State of Kerala &Ors. etc., [1973] 1 SCR 399 observed at page 426 as follows:- "Lands under eucalyptus or teak which are the result of agricultural operations normally would be agricultural lands. They would certainly not be forests but the statements in the petitions seem to suggest that operations were carried hereon for the express purpose of growing these plants and trees. However, lands which are covered by eucalyptus or teak growing spontaneously as in a jungle or a forest, would be outside the purview of acquisition." 3. It is true as noted above that this observation was made in the context A of Land Reforms Act but it was held that lands on which eucalyptus or teak are planted would be agricultural lands. In this case it ha s been found as noted before that eucalyptus trees in the area concerned under dispute were raised in the instant case not for a forest but for supply of fuel necessary for the manufacture of tea, which is the industry carried on by the respondent company. | 0[ds]We are of the opinion that in view of the Finding recorded by the Tribunal, the decision and judgment of the High Court cannot beis true as noted above that this observation was made in the context A of Land Reforms Act but it was held that lands on which eucalyptus or teak are planted would be agricultural lands. In this case it ha s been found as noted before that eucalyptus trees in the area concerned under dispute were raised in the instant case not for a forest but for supply of fuel necessary for the manufacture of tea, which is the industry carried on by the respondent company.In view of the aforesaid facts and in the light of provisions of the Act 26 of 1971, we are of the opinion that the view of the High Court is right in the facts and circumstances of this case and as such calls for no interference. The application is accordingly dismissed with no order as to costs.e are of the opinion that in view of the Finding recorded by the Tribunal, the decision and judgment of the High Court cannot beimpugned. It is instructive that in respect of proceedings initiated under the Land Reforms Act, this Court in Malankara Rubber and Product Co. &Ors. etc. v. State of Kerala &Ors. etc., [1973] 1 SCR 399 observed at page 426 asunder eucalyptus or teak which are the result of agricultural operations normally would be agricultural lands. They would certainly not be forests but the statements in the petitions seem to suggest that operations were carried hereon for the express purpose of growing these plants and trees. However, lands which are covered by eucalyptus or teak growing spontaneously as in a jungle or a forest, would be outside the purview of acquisition.is true as noted above that this observation was made in the context A of Land Reforms Act but it was held that lands on which eucalyptus or teak are planted would be agricultural lands. In this case it ha s been found as noted before that eucalyptus trees in the area concerned under dispute were raised in the instant case not for a forest but for supply of fuel necessary for the manufacture of tea, which is the industry carried on by the respondent company. | 0 | 1,438 | 414 | ### 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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or cinnamom and lands used for any purpose ancillary to the cultivation such crops or for the preparation of the same for the market.Explanation-Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall b e deemed to be lands used for purposes ancillary to the cultivation of such crops;(C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with an y other agricultural crop and(D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings;(ii) any forest nor owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did not apply, including waste lands which are enclaves within wooded areas.(2) in relation to the remaining areas in the State of Kerala any forest not owned by the Government including waste lands which are enclaves within wooded areas:Explanation-For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs;The Forest Tribunal in this case held, inter alia, in its order as follows:-"The entire property in O.A. 39/79 (26.90 hectares corresponding to 66.50 acres) admittedly contains eucalyptus trees raised by the petitioner as also cardamom plants here and there. The Superintendent in charge of the petitioner estate had deposed to that effect. The Range officer examined as R.W. 1 has stated that the disputed land on O.A. 39/79 lie in two bits and in both the bits there are eucalyptus trees raised by the petitioner, that they are aged between 12 to 15 years and are having a height of about 30 ft. It is also stated by him that at present there are cardamom plants but they are raised after 1971."The Tribunal went on to record as follows:"But, the respondents have conceded that those trees are not o f natural growth but they have been grown there with human skill, expenses and labour. That these trees are planted for purposes of fuel necessary for the manufacture of tea also admits of no doubt."The tribunal concluded by stating:-"The question whether eucalyptus plantations raised in a tea estate would be a forest or not has no bearing to the extent of the cultivation. It should be remembered that eucalyptus trees were raised in the instant case not for raising a forest but for supply of fuel necessary for the manufacture of tea. Hence I have no hesitation to come to the conclusion that the areas planted with eucalyptus trees in a tea estate do not form part of a vested forest or a private forest and therefore it is excluded from the purview of Act 26/71. In other words, the entire lands involved in O.A. 39/79 and 20 acres out of the property shown as item 1 in O.A. 146/78 which are eucalyptus plantations are not private forest and they have not vested in the Government."On this basis, the High Court ca me to conclusion that the Tribunal was right. The High Court in its order observed:-"The question whether forest lands planted with eucalyptus by employing agricultural operations would be forest was considered by this court in t he decision of a Division Bench reported in State of Kerala v. Anglo American Direct Tea Trading Co. Ltd., [1980] KLT 215. The same question was considered over again by a Full Bench of this Court in the decision reported in State of Kerala. v. A Moosa Haji, [1984] KLT 494. In the former decision, it was held:-"As we have indicated in the absence of a definition of the term forest in Act 26 of 1971 we should take notice of the general meaning of the term as used in common parlance. Whether one would understand a eucalyptus plantation within a Tea estate or adjoining a Tea estate as forest in common parlance would necessarily be the test. This calls for consideration of the scope of the term forest"In the contest in which the term "Private forests" has been used in Act 26 of 1971, it is evident that it applies to lands other than those on which human skill, labour and resources have been spent for agricultural operations.In the light of what we have adverted to we do not think that the State has succeeded in establishing that the land in which eucalyptus has been planted in the Tea plantations could be said to be forest land and if so we should agree with the decision of the Forest Tribunal that it would be outside the purview of the vesting provisions in Act 26 of 1971. " 2. We are of the opinion that in view of the Finding recorded by the Tribunal, the decision and judgment of the High Court cannot be impugned. It is instructive that in respect of proceedings initiated under the Land Reforms Act, this Court in Malankara Rubber and Product Co. &Ors. etc. v. State of Kerala &Ors. etc., [1973] 1 SCR 399 observed at page 426 as follows:- "Lands under eucalyptus or teak which are the result of agricultural operations normally would be agricultural lands. They would certainly not be forests but the statements in the petitions seem to suggest that operations were carried hereon for the express purpose of growing these plants and trees. However, lands which are covered by eucalyptus or teak growing spontaneously as in a jungle or a forest, would be outside the purview of acquisition." 3. It is true as noted above that this observation was made in the context A of Land Reforms Act but it was held that lands on which eucalyptus or teak are planted would be agricultural lands. In this case it ha s been found as noted before that eucalyptus trees in the area concerned under dispute were raised in the instant case not for a forest but for supply of fuel necessary for the manufacture of tea, which is the industry carried on by the respondent company.
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We are of the opinion that in view of the Finding recorded by the Tribunal, the decision and judgment of the High Court cannot beis true as noted above that this observation was made in the context A of Land Reforms Act but it was held that lands on which eucalyptus or teak are planted would be agricultural lands. In this case it ha s been found as noted before that eucalyptus trees in the area concerned under dispute were raised in the instant case not for a forest but for supply of fuel necessary for the manufacture of tea, which is the industry carried on by the respondent company.In view of the aforesaid facts and in the light of provisions of the Act 26 of 1971, we are of the opinion that the view of the High Court is right in the facts and circumstances of this case and as such calls for no interference. The application is accordingly dismissed with no order as to costs.e are of the opinion that in view of the Finding recorded by the Tribunal, the decision and judgment of the High Court cannot beimpugned. It is instructive that in respect of proceedings initiated under the Land Reforms Act, this Court in Malankara Rubber and Product Co. &Ors. etc. v. State of Kerala &Ors. etc., [1973] 1 SCR 399 observed at page 426 asunder eucalyptus or teak which are the result of agricultural operations normally would be agricultural lands. They would certainly not be forests but the statements in the petitions seem to suggest that operations were carried hereon for the express purpose of growing these plants and trees. However, lands which are covered by eucalyptus or teak growing spontaneously as in a jungle or a forest, would be outside the purview of acquisition.is true as noted above that this observation was made in the context A of Land Reforms Act but it was held that lands on which eucalyptus or teak are planted would be agricultural lands. In this case it ha s been found as noted before that eucalyptus trees in the area concerned under dispute were raised in the instant case not for a forest but for supply of fuel necessary for the manufacture of tea, which is the industry carried on by the respondent company.
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City Municipal Council, Mangalore & Anr Vs. Frederick Pais Etc | until superseded by anything done or any action taken under this Act."The third proviso has been introduced with retrospective effect by the Amending Act. It is not really necessary for us to consider more elaborately the scheme of the Mysore Act because, even according to the appellants, the procedure indicated therein-whatever may be the procedure about which we express no opinion-has not been taken before the issue of the demand notices which were under challenge before the High Court. On the other hand, the appellants have exclusively relied on the second and third provisos to Section 382 (1) of the Act.10. The learned Solicitor General has urged that the assessment books under the Madras Act were prepared on April 1, 1964 and, if so, under the second and third provisos to Section 382 (1), the property tax can be levied and collected as per the provisions of the Madras Act. In particular, the learned Solicitor General placed reliance upon the provision of the Madras Act relating to the assessment books having to be revised only once in every five years and pointed out that in this case the assessment books having been prepared on April 1, 1964 they will have currency for a period of five years till March 31, 1969. The first proviso to Section 382 (1) no doubt saves any tax which had been imposed under the Madras Act.Similarly, under the third proviso, the Municipal Council will have authority to collect tax even at a rate higher than the maximum rate permissible under the Mysore Act; but the essential requisite for attracting the two provisos is that the tax should have been imposed under the Madras Act as per the third proviso. We are not inclined to accept the contention of the learned Solicitor General that, by merely preparing the assessment registers under the Madras Act on April 1, 1964 it can be stated that a tax has been imposed under the first proviso or a tax at a higher rate has been imposed under the third proviso. We have already referred to the material provisions of the Madras Act relating to the levy of property tax. Those provisions show that 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 such official year.This was the view expressed by this Court in Municipal Corporation v. Hiralal, (1968) 2 SCR 125 = (AIR 1968 SC 642 ), while interpreting certain provisions of the Madhya Bharat Municipalities Act, 1954. No doubt the wording in the Madhya Bharat Act in Section 76, dealing with assessment list was slightly different, but, in our opinion, the principle enunciated in that decision regarding the municipal tax being an annual tax leviable for a particular official year and the assessment list, on the basis of which the tax is assessed having current for each such official year, is applicable also to the interpretation of the Madras Act. No resolution passed by the Municipal Council regarding the levy of the property tax and the rate at which it is to be levied, having currency for the year 1966-67, has been brought to our notice.11. The learned Solicitor General has drawn our attention to the minutes, dated September 15, 1966 as well as the Councils resolution No. 1280 dated December 20, 1966 relating to the levy of property tax in the City of Mangalore for the period in question, under the Mysore Act. Those proceedings will not assist the appellant as the necessary procedure, under the Mysore Act, has not been followed and therefore that resolution cannot have any legal validity, so as to justify the imposition of tax. Normally, the municipal council will have to prepare a fresh assessment list, every year. By virtue of Section 124 of the Madras Act, the rules and tables embodied in Schedule IV have to be read as Part of Chapter VI dealing with Taxation and Finance. Though, ordinarily, the Municipality would have to prepare a fresh assessment list every year, Rule 8 of Schedule IV permits the Municipal Council to continue the same assessment list for the next four succeeding years and to revise it once every five years. But, in order to enable the Municipal Council to levy and collect a tax, it has to pass a resolution determining to levy a tax, the rate at which such tax has to be levied as also the date from which it shall be levied. That the tax is an annual tax is also borne out by sub-section (2) of Section 82. If the contention of the learned Solicitor that the assessment list, once prepared, has to be adopted for five years is accepted, it will result in the annual value on a particular building or house being static for five years, during which a municipal council can go on adopting the assessment list prepared in an earlier year and the owner or occupier of the building being deprived of the right to object to the valuation regarding the annual value or the tax assessed thereon. This will be the result even though the annual value may have decreased for one reason or the other. It follows that the contention that the preparation of the assessment books amounts to imposing of a tax so as to justify the issue of the demand notice, cannot be accepted.12. Having due regard to the second and third provisos to Section 382 (1) and the other material provisions of the Mysore Act, the position is that a property tax must have been imposed by the Madras Act and even though the rates of such tax were higher than under the Mysore Act, the said higher tax could be collected. But no such tax having been imposed under the Madras Act, the second and third provisos to S.382 (1) do not apply and hence the demands for payment of property tax for the period are not justified. | 1[ds]10. The learned Solicitor General has urged that the assessment books under the Madras Act were prepared on April 1, 1964 and, if so, under the second and third provisos to Section 382 (1), the property tax can be levied and collected as per the provisions of the Madras Act. In particular, the learned Solicitor General placed reliance upon the provision of the Madras Act relating to the assessment books having to be revised only once in every five years and pointed out that in this case the assessment books having been prepared on April 1, 1964 they will have currency for a period of five years till March 31, 1969. The first proviso to Section 382 (1) no doubt saves any tax which had been imposed under the Madras Act.Similarly, under the third proviso, the Municipal Council will have authority to collect tax even at a rate higher than the maximum rate permissible under the Mysore Act; but the essential requisite for attracting the two provisos is that the tax should have been imposed under the Madras Act as per the thirdproceedings will not assist the appellant as the necessary procedure, under the Mysore Act, has not been followed and therefore that resolution cannot have any legal validity, so as to justify the imposition of tax. Normally, the municipal council will have to prepare a fresh assessment list, every year. By virtue of Section 124 of the Madras Act, the rules and tables embodied in Schedule IV have to be read as Part of Chapter VI dealing with Taxation and Finance. Though, ordinarily, the Municipality would have to prepare a fresh assessment list every year, Rule 8 of Schedule IV permits the Municipal Council to continue the same assessment list for the next four succeeding years and to revise it once every five years. But, in order to enable the Municipal Council to levy and collect a tax, it has to pass a resolution determining to levy a tax, the rate at which such tax has to be levied as also the date from which it shall be levied. That the tax is an annual tax is also borne out by sub-section (2) of Section 82. If the contention of the learned Solicitor that the assessment list, once prepared, has to be adopted for five years is accepted, it will result in the annual value on a particular building or house being static for five years, during which a municipal council can go on adopting the assessment list prepared in an earlier year and the owner or occupier of the building being deprived of the right to object to the valuation regarding the annual value or the tax assessed thereon. This will be the result even though the annual value may have decreased for one reason or the other. It follows that the contention that the preparation of the assessment books amounts to imposing of a tax so as to justify the issue of the demand notice, cannot be accepted.12. Having due regard to the second and third provisos to Section 382 (1) and the other material provisions of the Mysore Act, the position is that a property tax must have been imposed by the Madras Act and even though the rates of such tax were higher than under the Mysore Act, the said higher tax could be collected. But no such tax having been imposed under the Madras Act, the second and third provisos to S.382 (1) do not apply and hence the demands for payment of property tax for the period are not justified. | 1 | 3,698 | 657 | ### 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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until superseded by anything done or any action taken under this Act."The third proviso has been introduced with retrospective effect by the Amending Act. It is not really necessary for us to consider more elaborately the scheme of the Mysore Act because, even according to the appellants, the procedure indicated therein-whatever may be the procedure about which we express no opinion-has not been taken before the issue of the demand notices which were under challenge before the High Court. On the other hand, the appellants have exclusively relied on the second and third provisos to Section 382 (1) of the Act.10. The learned Solicitor General has urged that the assessment books under the Madras Act were prepared on April 1, 1964 and, if so, under the second and third provisos to Section 382 (1), the property tax can be levied and collected as per the provisions of the Madras Act. In particular, the learned Solicitor General placed reliance upon the provision of the Madras Act relating to the assessment books having to be revised only once in every five years and pointed out that in this case the assessment books having been prepared on April 1, 1964 they will have currency for a period of five years till March 31, 1969. The first proviso to Section 382 (1) no doubt saves any tax which had been imposed under the Madras Act.Similarly, under the third proviso, the Municipal Council will have authority to collect tax even at a rate higher than the maximum rate permissible under the Mysore Act; but the essential requisite for attracting the two provisos is that the tax should have been imposed under the Madras Act as per the third proviso. We are not inclined to accept the contention of the learned Solicitor General that, by merely preparing the assessment registers under the Madras Act on April 1, 1964 it can be stated that a tax has been imposed under the first proviso or a tax at a higher rate has been imposed under the third proviso. We have already referred to the material provisions of the Madras Act relating to the levy of property tax. Those provisions show that 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 such official year.This was the view expressed by this Court in Municipal Corporation v. Hiralal, (1968) 2 SCR 125 = (AIR 1968 SC 642 ), while interpreting certain provisions of the Madhya Bharat Municipalities Act, 1954. No doubt the wording in the Madhya Bharat Act in Section 76, dealing with assessment list was slightly different, but, in our opinion, the principle enunciated in that decision regarding the municipal tax being an annual tax leviable for a particular official year and the assessment list, on the basis of which the tax is assessed having current for each such official year, is applicable also to the interpretation of the Madras Act. No resolution passed by the Municipal Council regarding the levy of the property tax and the rate at which it is to be levied, having currency for the year 1966-67, has been brought to our notice.11. The learned Solicitor General has drawn our attention to the minutes, dated September 15, 1966 as well as the Councils resolution No. 1280 dated December 20, 1966 relating to the levy of property tax in the City of Mangalore for the period in question, under the Mysore Act. Those proceedings will not assist the appellant as the necessary procedure, under the Mysore Act, has not been followed and therefore that resolution cannot have any legal validity, so as to justify the imposition of tax. Normally, the municipal council will have to prepare a fresh assessment list, every year. By virtue of Section 124 of the Madras Act, the rules and tables embodied in Schedule IV have to be read as Part of Chapter VI dealing with Taxation and Finance. Though, ordinarily, the Municipality would have to prepare a fresh assessment list every year, Rule 8 of Schedule IV permits the Municipal Council to continue the same assessment list for the next four succeeding years and to revise it once every five years. But, in order to enable the Municipal Council to levy and collect a tax, it has to pass a resolution determining to levy a tax, the rate at which such tax has to be levied as also the date from which it shall be levied. That the tax is an annual tax is also borne out by sub-section (2) of Section 82. If the contention of the learned Solicitor that the assessment list, once prepared, has to be adopted for five years is accepted, it will result in the annual value on a particular building or house being static for five years, during which a municipal council can go on adopting the assessment list prepared in an earlier year and the owner or occupier of the building being deprived of the right to object to the valuation regarding the annual value or the tax assessed thereon. This will be the result even though the annual value may have decreased for one reason or the other. It follows that the contention that the preparation of the assessment books amounts to imposing of a tax so as to justify the issue of the demand notice, cannot be accepted.12. Having due regard to the second and third provisos to Section 382 (1) and the other material provisions of the Mysore Act, the position is that a property tax must have been imposed by the Madras Act and even though the rates of such tax were higher than under the Mysore Act, the said higher tax could be collected. But no such tax having been imposed under the Madras Act, the second and third provisos to S.382 (1) do not apply and hence the demands for payment of property tax for the period are not justified.
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10. The learned Solicitor General has urged that the assessment books under the Madras Act were prepared on April 1, 1964 and, if so, under the second and third provisos to Section 382 (1), the property tax can be levied and collected as per the provisions of the Madras Act. In particular, the learned Solicitor General placed reliance upon the provision of the Madras Act relating to the assessment books having to be revised only once in every five years and pointed out that in this case the assessment books having been prepared on April 1, 1964 they will have currency for a period of five years till March 31, 1969. The first proviso to Section 382 (1) no doubt saves any tax which had been imposed under the Madras Act.Similarly, under the third proviso, the Municipal Council will have authority to collect tax even at a rate higher than the maximum rate permissible under the Mysore Act; but the essential requisite for attracting the two provisos is that the tax should have been imposed under the Madras Act as per the thirdproceedings will not assist the appellant as the necessary procedure, under the Mysore Act, has not been followed and therefore that resolution cannot have any legal validity, so as to justify the imposition of tax. Normally, the municipal council will have to prepare a fresh assessment list, every year. By virtue of Section 124 of the Madras Act, the rules and tables embodied in Schedule IV have to be read as Part of Chapter VI dealing with Taxation and Finance. Though, ordinarily, the Municipality would have to prepare a fresh assessment list every year, Rule 8 of Schedule IV permits the Municipal Council to continue the same assessment list for the next four succeeding years and to revise it once every five years. But, in order to enable the Municipal Council to levy and collect a tax, it has to pass a resolution determining to levy a tax, the rate at which such tax has to be levied as also the date from which it shall be levied. That the tax is an annual tax is also borne out by sub-section (2) of Section 82. If the contention of the learned Solicitor that the assessment list, once prepared, has to be adopted for five years is accepted, it will result in the annual value on a particular building or house being static for five years, during which a municipal council can go on adopting the assessment list prepared in an earlier year and the owner or occupier of the building being deprived of the right to object to the valuation regarding the annual value or the tax assessed thereon. This will be the result even though the annual value may have decreased for one reason or the other. It follows that the contention that the preparation of the assessment books amounts to imposing of a tax so as to justify the issue of the demand notice, cannot be accepted.12. Having due regard to the second and third provisos to Section 382 (1) and the other material provisions of the Mysore Act, the position is that a property tax must have been imposed by the Madras Act and even though the rates of such tax were higher than under the Mysore Act, the said higher tax could be collected. But no such tax having been imposed under the Madras Act, the second and third provisos to S.382 (1) do not apply and hence the demands for payment of property tax for the period are not justified.
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State Of Haryana Vs. Mukesh Kumar | scenario, the property owner, at the point in which a “taking” has occurred, has the option of filing a claim against the government actor to recover just compensation for the loss. When the landowner sues the government seeking compensation for a taking, it is considered an inverse condemnation proceeding, because the landowner and not the government is bringing the cause of action. 42. We inherited this law of adverse possession from the British. The Parliament may consider abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest. The Government instrumentalities - including the police - in the instant case have attempted to possess land adversely. This, in our opinion, a testament to the absurdity of the law and a black mark upon the justice systems legitimacy. The Government should protect the property of a citizen - not steal it. And yet, as the law currently stands, they may do just that. If this law is to be retained, according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to compensate title owners according to the prevalent market rate of the land or property in question. This alternative would provide some semblance of justice to those who have done nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain on property. While it may be indefensible to require all adverse possessors - some of whom may be poor - to pay market rates for the land they possess, perhaps some lesser amount would be realistic in most of the cases. The Parliament may either fix a set range of rates or to leave it to the judiciary with the option of choosing from within a set range of rates so as to tailor the compensation to the equities of a given case. 43. The Parliament must seriously consider at least to abolish “bad faith” adverse possession, i.e., adverse possession achieved through intentional trespassing. Actually believing it to be their own could receive title through adverse possession sends a wrong signal to the society at large. Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief. 44. In case, the Parliament decides to retain the law of adverse possession, the Parliament might simply require adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12. Such an extension would help to ensure that successful claimants have lived on the land for generations, and are therefore less likely to be individually culpable for the trespass (although their forebears might). A longer statutory period would also decrease the frequency of adverse possession suits and ensure that only those claimants most intimately connected with the land acquire it, while only the most passive and unprotective owners lose title. 45. Reverting to the facts of this case, if the Police department of the State with all its might is bent upon taking possession of any land or building in a clandestine manner, then, perhaps no one would be able to effectively prevent them. 46. It is our bounden duty and obligation to ascertain the intention of the Parliament while interpreting the law. Law and Justice, more often than not, happily coincide only rarely we find serious conflict. The archaic law of adverse possession is one such. A serious re-look is absolutely imperative in the larger interest of the people. 47. Adverse possession allows a trespasser - a person guilty of a tort, or even a crime, in the eyes of law - to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible. 48. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change. 49. If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country. 50. It is indeed a very disturbing and dangerous trend. In our considered view, it must be arrested without further loss of time in the larger public interest. No Government Department, Public Undertaking, and much less the Police Department should be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens in the manner that has been done in this case. 51. In our considered view, there is an urgent need for a fresh look of the entire law on adverse possession. We recommend the Union of India to immediately consider and seriously deliberate either abolition of the law of adverse possession and in the alternate to make suitable amendments in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law.52. This Special Leave Petition is dismissed with costs of Rs.50,000/- (Rupees Fifty Thousand only) to be paid by the State of Haryana for filing a totally frivolous petition and unnecessarily wasting the time of the Court and demonstrating its evil design of grabbing the properties of lawful owners in a clandestine manner. The costs be deposited within four weeks from the date of pronouncement of this judgment. In this petition, we did not issue notice to the defendants, therefore, we direct that the costs be deposited with the National Legal Services Authority for utilizing the same to enable the poor litigants to contest their cases. 53. | 0[ds]A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession. Though we got this law of adverse possession from the British, it is important to note that these days English Courts are taking a very negative view towards the law of adverse possession. The English law was amended and changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the European Commission. This Court in Revamma (supra) observed that to understand the true nature of adverse possession,Fairweather v. St Marylebone Property Co [1962] 2 WLR 1020 : [1962] 2 All ER288 can be considered where House of Lords referring to Taylorv. Twinberrow [1930] 2 K.B.16 termed adverse possession as a negative and consequential right effected only because somebody elses positive right to access the court is barred by operation of law. As against the rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored theinherited this law of adverse possession from the British. The Parliament may consider abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest. The Government instrumentalities - including the police - in the instant case have attempted to possess land adversely. This, in our opinion, a testament to the absurdity of the law and a black mark upon the justice systems legitimacy. The Government should protect the property of a citizen - not steal it. And yet, as the law currently stands, they may do just that. If this law is to be retained, according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to compensate title owners according to the prevalent market rate of the land or property in question. This alternative would provide some semblance of justice to those who have done nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain onis an urgent need for a fresh look of the entire law on adverse possession. We recommend the Union of India to immediately consider and seriously deliberate either abolition of the law of adverse possession and in the alternate to make suitable amendments in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law.52. This Special Leave Petition is dismissed with costs of Rs.50,000/- (Rupees Fifty Thousand only) to be paid by the State of Haryana for filing a totally frivolous petition and unnecessarily wasting the time of the Court and demonstrating its evil design of grabbing the properties of lawful owners in a clandestine manner. The costs be deposited within four weeks from the date of pronouncement of this judgment. In this petition, we did not issue notice to the defendants, therefore, we direct that the costs be deposited with the National Legal Services Authority for utilizing the same to enable the poor litigants to contest their cases. | 0 | 6,230 | 632 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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scenario, the property owner, at the point in which a “taking” has occurred, has the option of filing a claim against the government actor to recover just compensation for the loss. When the landowner sues the government seeking compensation for a taking, it is considered an inverse condemnation proceeding, because the landowner and not the government is bringing the cause of action. 42. We inherited this law of adverse possession from the British. The Parliament may consider abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest. The Government instrumentalities - including the police - in the instant case have attempted to possess land adversely. This, in our opinion, a testament to the absurdity of the law and a black mark upon the justice systems legitimacy. The Government should protect the property of a citizen - not steal it. And yet, as the law currently stands, they may do just that. If this law is to be retained, according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to compensate title owners according to the prevalent market rate of the land or property in question. This alternative would provide some semblance of justice to those who have done nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain on property. While it may be indefensible to require all adverse possessors - some of whom may be poor - to pay market rates for the land they possess, perhaps some lesser amount would be realistic in most of the cases. The Parliament may either fix a set range of rates or to leave it to the judiciary with the option of choosing from within a set range of rates so as to tailor the compensation to the equities of a given case. 43. The Parliament must seriously consider at least to abolish “bad faith” adverse possession, i.e., adverse possession achieved through intentional trespassing. Actually believing it to be their own could receive title through adverse possession sends a wrong signal to the society at large. Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief. 44. In case, the Parliament decides to retain the law of adverse possession, the Parliament might simply require adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12. Such an extension would help to ensure that successful claimants have lived on the land for generations, and are therefore less likely to be individually culpable for the trespass (although their forebears might). A longer statutory period would also decrease the frequency of adverse possession suits and ensure that only those claimants most intimately connected with the land acquire it, while only the most passive and unprotective owners lose title. 45. Reverting to the facts of this case, if the Police department of the State with all its might is bent upon taking possession of any land or building in a clandestine manner, then, perhaps no one would be able to effectively prevent them. 46. It is our bounden duty and obligation to ascertain the intention of the Parliament while interpreting the law. Law and Justice, more often than not, happily coincide only rarely we find serious conflict. The archaic law of adverse possession is one such. A serious re-look is absolutely imperative in the larger interest of the people. 47. Adverse possession allows a trespasser - a person guilty of a tort, or even a crime, in the eyes of law - to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible. 48. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change. 49. If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country. 50. It is indeed a very disturbing and dangerous trend. In our considered view, it must be arrested without further loss of time in the larger public interest. No Government Department, Public Undertaking, and much less the Police Department should be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens in the manner that has been done in this case. 51. In our considered view, there is an urgent need for a fresh look of the entire law on adverse possession. We recommend the Union of India to immediately consider and seriously deliberate either abolition of the law of adverse possession and in the alternate to make suitable amendments in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law.52. This Special Leave Petition is dismissed with costs of Rs.50,000/- (Rupees Fifty Thousand only) to be paid by the State of Haryana for filing a totally frivolous petition and unnecessarily wasting the time of the Court and demonstrating its evil design of grabbing the properties of lawful owners in a clandestine manner. The costs be deposited within four weeks from the date of pronouncement of this judgment. In this petition, we did not issue notice to the defendants, therefore, we direct that the costs be deposited with the National Legal Services Authority for utilizing the same to enable the poor litigants to contest their cases. 53.
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A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession. Though we got this law of adverse possession from the British, it is important to note that these days English Courts are taking a very negative view towards the law of adverse possession. The English law was amended and changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the European Commission. This Court in Revamma (supra) observed that to understand the true nature of adverse possession,Fairweather v. St Marylebone Property Co [1962] 2 WLR 1020 : [1962] 2 All ER288 can be considered where House of Lords referring to Taylorv. Twinberrow [1930] 2 K.B.16 termed adverse possession as a negative and consequential right effected only because somebody elses positive right to access the court is barred by operation of law. As against the rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored theinherited this law of adverse possession from the British. The Parliament may consider abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest. The Government instrumentalities - including the police - in the instant case have attempted to possess land adversely. This, in our opinion, a testament to the absurdity of the law and a black mark upon the justice systems legitimacy. The Government should protect the property of a citizen - not steal it. And yet, as the law currently stands, they may do just that. If this law is to be retained, according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to compensate title owners according to the prevalent market rate of the land or property in question. This alternative would provide some semblance of justice to those who have done nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain onis an urgent need for a fresh look of the entire law on adverse possession. We recommend the Union of India to immediately consider and seriously deliberate either abolition of the law of adverse possession and in the alternate to make suitable amendments in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law.52. This Special Leave Petition is dismissed with costs of Rs.50,000/- (Rupees Fifty Thousand only) to be paid by the State of Haryana for filing a totally frivolous petition and unnecessarily wasting the time of the Court and demonstrating its evil design of grabbing the properties of lawful owners in a clandestine manner. The costs be deposited within four weeks from the date of pronouncement of this judgment. In this petition, we did not issue notice to the defendants, therefore, we direct that the costs be deposited with the National Legal Services Authority for utilizing the same to enable the poor litigants to contest their cases.
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R. B. Bansilal Abirchand Firm Vs. Commissioner of Income Tax, M. P | and on the material which was before him at the time of the first assessment changed his opinion and came to a different conclusion. The correct conclusion was brought to his notice by the decision of the Tribunal and the High Court and that must be held to be information, as a consequence of which he came to believe that the provisions of section 34(1)(b) were attracted. In a recent decision of this court in Commissioner of Income-tax v. A. Raman & Co., dealing with the corresponding provision contained in section 147(1)(b) of the Income-tax Act, 1961, the court held" The expression information in the context in which it occurs must, in our judgment, mean instruction or knowledge derived from an external source concerning facts or particulars, or as to law relating to a matter bearing on the assessment." It was further held" That information must, it is true, have come into the possession of the Income-tax Officer after the previous assessment, but even if the information be such that it could have been obtained during the previous assessment from an investigation of the materials on the record, or the facts disclosed thereby or from other enquiry or research into facts or law, but was not in fact obtained, the jurisdiction of the Income-tax Officer is not affected. "3. These principles clearly support our view that in this case the Income-tax Officer had jurisdiction to proceed under section 34(1)(b), because he had reason to believe that income chargeable to tax had escaped assessment, or had been under-assessed or excessive relief had been granted as a consequence of the information which came to him from the external source, of the decisions of the Tribunal and the High Court in the assesssment proceedings of Bisesar House4. Mr. S. T. Desai, counsel for the assessee, relying on the decision of the Allahabad High Court in New Victoria Mills Co. Ltd. v. Commissioner of Income-tax, urged that the Income-tax Officer cannot have jurisdiction to proceed under section 34, unless it can be said that new facts came to his knowledge which were not in his possession at the time when he made the assessment. If the Income-tax Officer had made a mistake with full knowledge of the facts, the mistake could not be rectified by him by issuing a notice under section 34 of the Income-tax Act. That case, however, was concerned with the provisions of section 34 as they stood before the arnendment of that section by the Income-tax Amendment Act, 1948 (48 of 1948), which gave the right to an Income-tax Officer to reopen an assessment only if, as a result of definite information, he discovered that income chargeable to tax had escaped assessment or had been under-assessed. All that was held by the Allahabad High Court was that section 34 could not be applied because in that case it was not possible to hold that, as a result of information received in the assessment proceedings of another company, the income-tax Officer had discovered that the income of the assessee concerned had escaped assessment. The emphasis was on the fact that, though some information came into the possession of the Income-tax Officer as a result of assessment proceedings of another company, the discovery that the income of the assessee had escaped assessment was not the result of that information. Reference was also made to a decision of the Patna High Court in Bhimraj Panna Lal v. Commissioner of Income-tax, where it was held" In my judgment, in order to hold that income may have escaped assessment , there must have been either some fresh facts brought to the notice of the income-tax authorities, or some change in law which were in existence during the chargeable accounting period, but which were not brought to the notice of, or taken notice of, by the income-tax authorities, during the chargeable accounting period, but which arose subsequent to it having relation to the facts on which the original assessment had been made. "5. It was urged that, in the present case, no fresh facts were brought to the notice of the Income-tax Officer to justify his proceeding under section 34(1)(b). In that case also, reliance was placed on the language which existed in section 34(1) before its amendment in 1948, when the words containe required that " in consequence of definite information which has come into his possession, the Income-tax Officer discovers ". It may also be mentioned that that case came up before this court in Bhimraj Pannalal v. Commissioner of Income-tax. In this court, the counsel for the assessee frankly stated that he was not in a position to contend that the proceedings under section 34 were ab initio void. The court further noticed the fact that the High Court had rightly pointed out that there were enough materials on which the Income-tax Officer could initiate proceedings under section 34 for the three assessment years in question. In that case, therefore, the information which came into the possession of the Income-tax Officer was held to justify resort to section 346. The case of K. T. Kubal & Co. Pvt. Ltd. v. Commissioner of Income-tax is also, in our opinion, of no assistance to the assessee. In that case, after considering the facts, the Bombay High Court held that it could " hardly be stated that any additional information has come in the possession of the Income-tax Officer which was not in his possession when the assessment orders were made. " It was in view of this finding of fact that it was that section 34(1)(b) was not applicable. In the present case, we have already indicated that the judgments of the Tribunal and the High Court in the assessment proceedings of Bisesar House did result in the Income-tax Officer coming into possession of information on the basis of which he could initiate proceedings under section 34(1)(b)We, consequently, hold that the decision given by the High Court was correct. The appeal is dismissed with costs | 0[ds]3. These principles clearly support our view that in this case theOfficer had jurisdiction to proceed under section 34(1)(b), because he had reason to believe that income chargeable to tax had escaped assessment, or had beenor excessive relief had been granted as a consequence of the information which came to him from the external source, of the decisions of the Tribunal and the High Court in the assesssment proceedings of Bisesarthat case, therefore, the information which came into the possession of theOfficer was held to justify resort to sectionwas in view of this finding of fact that it was that section 34(1)(b) was not applicable. In the present case, we have already indicated that the judgments of the Tribunal and the High Court in the assessment proceedings of Bisesar House did result in theOfficer coming into possession of information on the basis of which he could initiate proceedings under section 34(1)(b)We, consequently, hold that the decision given by the High Court was correct. The appeal is dismissed with costs | 0 | 2,104 | 203 | ### Instruction:
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and on the material which was before him at the time of the first assessment changed his opinion and came to a different conclusion. The correct conclusion was brought to his notice by the decision of the Tribunal and the High Court and that must be held to be information, as a consequence of which he came to believe that the provisions of section 34(1)(b) were attracted. In a recent decision of this court in Commissioner of Income-tax v. A. Raman & Co., dealing with the corresponding provision contained in section 147(1)(b) of the Income-tax Act, 1961, the court held" The expression information in the context in which it occurs must, in our judgment, mean instruction or knowledge derived from an external source concerning facts or particulars, or as to law relating to a matter bearing on the assessment." It was further held" That information must, it is true, have come into the possession of the Income-tax Officer after the previous assessment, but even if the information be such that it could have been obtained during the previous assessment from an investigation of the materials on the record, or the facts disclosed thereby or from other enquiry or research into facts or law, but was not in fact obtained, the jurisdiction of the Income-tax Officer is not affected. "3. These principles clearly support our view that in this case the Income-tax Officer had jurisdiction to proceed under section 34(1)(b), because he had reason to believe that income chargeable to tax had escaped assessment, or had been under-assessed or excessive relief had been granted as a consequence of the information which came to him from the external source, of the decisions of the Tribunal and the High Court in the assesssment proceedings of Bisesar House4. Mr. S. T. Desai, counsel for the assessee, relying on the decision of the Allahabad High Court in New Victoria Mills Co. Ltd. v. Commissioner of Income-tax, urged that the Income-tax Officer cannot have jurisdiction to proceed under section 34, unless it can be said that new facts came to his knowledge which were not in his possession at the time when he made the assessment. If the Income-tax Officer had made a mistake with full knowledge of the facts, the mistake could not be rectified by him by issuing a notice under section 34 of the Income-tax Act. That case, however, was concerned with the provisions of section 34 as they stood before the arnendment of that section by the Income-tax Amendment Act, 1948 (48 of 1948), which gave the right to an Income-tax Officer to reopen an assessment only if, as a result of definite information, he discovered that income chargeable to tax had escaped assessment or had been under-assessed. All that was held by the Allahabad High Court was that section 34 could not be applied because in that case it was not possible to hold that, as a result of information received in the assessment proceedings of another company, the income-tax Officer had discovered that the income of the assessee concerned had escaped assessment. The emphasis was on the fact that, though some information came into the possession of the Income-tax Officer as a result of assessment proceedings of another company, the discovery that the income of the assessee had escaped assessment was not the result of that information. Reference was also made to a decision of the Patna High Court in Bhimraj Panna Lal v. Commissioner of Income-tax, where it was held" In my judgment, in order to hold that income may have escaped assessment , there must have been either some fresh facts brought to the notice of the income-tax authorities, or some change in law which were in existence during the chargeable accounting period, but which were not brought to the notice of, or taken notice of, by the income-tax authorities, during the chargeable accounting period, but which arose subsequent to it having relation to the facts on which the original assessment had been made. "5. It was urged that, in the present case, no fresh facts were brought to the notice of the Income-tax Officer to justify his proceeding under section 34(1)(b). In that case also, reliance was placed on the language which existed in section 34(1) before its amendment in 1948, when the words containe required that " in consequence of definite information which has come into his possession, the Income-tax Officer discovers ". It may also be mentioned that that case came up before this court in Bhimraj Pannalal v. Commissioner of Income-tax. In this court, the counsel for the assessee frankly stated that he was not in a position to contend that the proceedings under section 34 were ab initio void. The court further noticed the fact that the High Court had rightly pointed out that there were enough materials on which the Income-tax Officer could initiate proceedings under section 34 for the three assessment years in question. In that case, therefore, the information which came into the possession of the Income-tax Officer was held to justify resort to section 346. The case of K. T. Kubal & Co. Pvt. Ltd. v. Commissioner of Income-tax is also, in our opinion, of no assistance to the assessee. In that case, after considering the facts, the Bombay High Court held that it could " hardly be stated that any additional information has come in the possession of the Income-tax Officer which was not in his possession when the assessment orders were made. " It was in view of this finding of fact that it was that section 34(1)(b) was not applicable. In the present case, we have already indicated that the judgments of the Tribunal and the High Court in the assessment proceedings of Bisesar House did result in the Income-tax Officer coming into possession of information on the basis of which he could initiate proceedings under section 34(1)(b)We, consequently, hold that the decision given by the High Court was correct. The appeal is dismissed with costs
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### Explanation:
3. These principles clearly support our view that in this case theOfficer had jurisdiction to proceed under section 34(1)(b), because he had reason to believe that income chargeable to tax had escaped assessment, or had beenor excessive relief had been granted as a consequence of the information which came to him from the external source, of the decisions of the Tribunal and the High Court in the assesssment proceedings of Bisesarthat case, therefore, the information which came into the possession of theOfficer was held to justify resort to sectionwas in view of this finding of fact that it was that section 34(1)(b) was not applicable. In the present case, we have already indicated that the judgments of the Tribunal and the High Court in the assessment proceedings of Bisesar House did result in theOfficer coming into possession of information on the basis of which he could initiate proceedings under section 34(1)(b)We, consequently, hold that the decision given by the High Court was correct. The appeal is dismissed with costs
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Commnr. Of Customs (General), N. Delhi Vs. Gujarat Perstorp Electronics Ltd | whether ‘books’ were covered by the entry ‘plant’ under the Income Tax Act. Those decisions, therefore, have no relevance to the issue in question since the entries are different. It was also submitted that since the article in question was to be used by the assessee and was prepared according to his requirement, it had no utility to others. Hence, it cannot be said to be a ‘book’ in general sense. It was argued that this Court has considered the factual position in Parasrampuria Synthetics Ltd. and held that the article was not a book. It would not, therefore, be appropriate to hold otherwise in the present case.55. In our opinion, all these questions have to be considered and decided by the CEGAT in the fact-situation of the case in hand. As already noted by us, some of the tests applied in Parasrampuria Synthetics Ltd. were not relevant and appropriate. The CEGAT will now consider the ratio in Parasrampuria Synthetics Ltd. in the light of the observations made by us in this judgment and decide the issue raised in the instant case. 56. The matter could be looked at from another angle also. As noted earlier, HSN has dealt with the point and as per Explanatory Note, it would fall under Chapter Heading 49.01. If it is so, it would not be covered by Sub-heading 4911.99. 57. In this connection, we may refer to a three-Judge Bench decision of this Court in Collector of Central Excise, Shillong v. Wood Craft Products Ltd., (1995) 3 SCC 454 =(1995) 77 ELT 23 (SC). The Court, in that case, considered the question whether ‘plywood’ was classifiable under Sub-heading 4408.90 or Sub-heading 4410.90? HSN Explanatory Notes was considered by this Court and it was observed: “We are of the view that the Tribunal as well as the High Court fell into the error of overlooking the fact that the structure of the Central Excise Tariff is based on the internationally accepted nomenclature found in the HSN and, therefore, any dispute relating to tariff classification must, as far as possible, be resolved with reference to the nomenclature indicated by the HSN unless there be an express different intention indicated by the Central Excise Tariff Act, 1985 itself. The definition of a term in the ISI Glossary, which has a different purpose, cannot in case of a conflict, override the clear indication of the meaning of an identical expression in the same context in the HSN. In the HSN, block board is included within the meaning of the expression “similar laminated wood” in the same context of classification of block board. Since the Central Excise Tariff Act, 1985 is enacted on the basis and pattern of the HSN, the same expression used in the Act must, as far as practicable, be construed to have the meaning which is expressly given to it in the HSN when there is no indication in the Indian Tariff of a different intention.” 58. The ratio laid down in Wood Craft Products Ltd. was followed and reiterated in Collector of Central Excise, Hyderabad v. Backelite Hylam Ltd., (1997) 10 SCC 350 : (1997) 91 ELT 13 (SC), and in Collector of Customs, Bombay v. Business Forms Ltd. Thr. O.L., I (2002) SLT 791=(2002) 142 ELT 18 (SC) . Hence, even that aspect has to be considered and kept in mind while deciding as to whether Drawings, Designs and Plans could or could not be said to be ‘printed book’ covered by Chapter Headings 49.01, 49.06 or Sub-heading 4911.99? 59. There is still one more aspect which is relevant. It cannot be disputed and is not disputed before us and is also concluded by a decision of a three-Judge Bench in Associated Cement Co. Ltd. that the basic heading is 49.01. It deals with “Printed books, brochures, leaflets and similar printed matter, whether or not in single sheets”. 49.11 covers “Other printed matter, including printed pictures and photographs”. Thus, specific or basic heading is 49.01 and residual entry is 49.11. Priority, therefore, has to be given to the main entry and not the residual entry. According to the Company, the case is covered by the main entry under 49.01, and in that view of the matter, one cannot consider the residual entry 49.11. 60. In Indian Metals and Ferro Alloys Ltd., Cuttack v. Collector of Central Excise, Bhubaneshwar, 1991 Suppl. (1) SCC 125, this Court held that residuary item can be referred to and such item can be applied only when goods are shown to be not falling under any other specific item. If they are covered by a specific item, residuary item has no application.The Court stated: “One more aspect of the issue should be adverted to before we conclude. The assessee is relying upon a specific entry in the tariff schedule while the department seeks to bring the goods to charge under the residuary Item 68. It is a settled principle that unless the department can establish that the goods in question can, by no conceivable process of reasoning, be brought under any of the specific items mentioned in the tariff, resort cannot be had to the residuary item...” [See also Bharat Forge and Press Industries v. Commissioner of Central Excise, (1990) 1 SCC 532 : (1990) 45 ELT 525 (SC)].61. In our considered opinion, all these contentions raised by the assessee have to be dealt with and decided in the light of relevant statutory provisions of the Act and the Rules as also on the basis of decided cases on the point. As CEGAT has disposed of all the appeals merely on the basis of Larger Bench decision in Parasrampuria Synthetics Ltd. and has not considered rival contentions on merits nor recorded findings thereon, it would be appropriate and in the fitness of things to remit the matters to CEGAT, now to Customs, Excise and Service Tax Appellate Tribunal (CESTAT) to decide them on all points in accordance with law in the light of observations made in this judgment. | 1[ds]So far as CEGAT is concerned, in our opinion, the learned Counsel for the assessee is right in submitting that the point is finally concluded in favour of assessee and against the department in Parasrampuria Synthetics Ltd. The Larger Bench observed that in several cases, Drawings, Designs and Plans were held to be covered under Chapter 49 and would fall under Heading 49.01 (printed books, brochures, leaflets and similar printed matter whether or not in single sheets); 49.06 (Plans and drawing etc. for architecture, engineering, industrial, commercial, topographical or similar purposes, being originals drawn by hand; had-written texts; photographic reproductions on sensitized paper and carbon copies of the foregoing); and 49.11 (other printed matter, including printed pictures and photographs) and not under 4911.99 (other). The Larger Bench also noted that in some cases, a contrary view was taken. But relying on the majority of the decisions, it was held that the relevant heading was 49.01 of Schedule I of the Act.In our opinion, the Counsel is right in submitting that when the expressionis not defined in the Act, natural and ordinary meaning of the said expression must be kept in view. According to him, nowhere it is provided that all the time characteristics or ingredients as highlighted by the learned Attorney General in Parasrampuria Synthetics Ltd. and referred to by this Court in paragraph 10 must be considered essential or sine qua non. He, therefore, submitted that a wrong test was applied by this Court in Parasrampuria Synthetics Ltd. and Scientific Engineering House Ltd. was erroneously distinguished. The proper way on the part of the Court was to consider the test laid down in Scientific Engineering House Ltd. and to come to a conclusion whether on the facts and in the circumstances of the case, Drawings, Designs and Plans in the case on hand could be said to beBy not doing so, a clear error of law had been committed and the decision deserves to be overruled.53. It was also submitted that so far as factual aspect is concerned, CEGAT was right in holding that Drawings, Designs and Plans imported by the assessee were covered by Tariff Heading 49.01 and were also entitled to exemption under Notification No. 107/93-Cus and 38/94-Cus. Alternatively, it was submitted that if this Court is of the view that CEGAT has not entered into the said question in view of the Larger Bench decision, the matter may be remitted to CEGAT directing it to consider the case afresh by applying correct test and to take an appropriate decision.54.The learned Counsel for the Revenue submitted that Elecon Engineers Ltd. and Scientific Engineering Housing Ltd. were rendered in different context. The basic issue was — whetherwere covered by the entryunder the Income TaxAct. Those decisions, therefore, have no relevance to the issue in question since the entries are different.It was also submitted that since the article in question was to be used by the assessee and was prepared according to his requirement, it had no utility to others. Hence, it cannot be said to be ain general sense. It was argued that this Court has considered the factual position in Parasrampuria Synthetics Ltd. and held that the article was not a book.It would not, therefore, be appropriate to hold otherwise in the present case.55. In our opinion, all these questions have to be considered and decided by the CEGAT in the fact-situation of the case in hand. As already noted by us, some of the tests applied in Parasrampuria Synthetics Ltd. were not relevant and appropriate. The CEGAT will now consider the ratio in Parasrampuria Synthetics Ltd. in the light of the observations made by us in this judgment and decide the issue raised in the instant case.In this connection, we may refer to a three-Judge Bench decision of this Court in Collector of Central Excise, Shillong v. Wood Craft Products Ltd., (1995) 3 SCC 454 =(1995) 77 ELT 23 (SC). The Court, in that case, considered the question whetherwas classifiable under Sub-heading 4408.90 or Sub-heading 4410.90? HSN Explanatory Notes was considered by this Court and it wasare of the view that the Tribunal as well as the High Court fell into the error of overlooking the fact that the structure of the Central Excise Tariff is based on the internationally accepted nomenclature found in the HSN and, therefore, any dispute relating to tariff classification must, as far as possible, be resolved with reference to the nomenclature indicated by the HSN unless there be an express different intention indicated by the Central Excise Tariff Act, 1985 itself. The definition of a term in the ISI Glossary, which has a different purpose, cannot in case of a conflict, override the clear indication of the meaning of an identical expression in the same context in the HSN. In the HSN, block board is included within the meaning of the expressionin the same context of classification of block board. Since the Central Excise Tariff Act, 1985 is enacted on the basis and pattern of the HSN, the same expression used in the Act must, as far as practicable, be construed to have the meaning which is expressly given to it in the HSN when there is no indication in the Indian Tariff of a different intention.In Indian Metals and Ferro Alloys Ltd., Cuttack v. Collector of Central Excise, Bhubaneshwar, 1991 Suppl. (1) SCC 125, this Court held that residuary item can be referred to and such item can be applied only when goods are shown to be not falling under any other specific item. If they are covered by a specific item, residuary item has no application.The Courtmore aspect of the issue should be adverted to before we conclude. The assessee is relying upon a specific entry in the tariff schedule while the department seeks to bring the goods to charge under the residuary Item 68. It is a settled principle that unless the department can establish that the goods in question can, by no conceivable process of reasoning, be brought under any of the specific items mentioned in the tariff, resort cannot be had to the residuary[See also Bharat Forge and Press Industries v. Commissioner of Central Excise, (1990) 1 SCC 532 : (1990) 45 ELT 525 (SC)].61. In our considered opinion, all these contentions raised by the assessee have to be dealt with and decided in the light of relevant statutory provisions of the Act and the Rules as also on the basis of decided cases on the point. As CEGAT has disposed of all the appeals merely on the basis of Larger Bench decision in Parasrampuria Synthetics Ltd. and has not considered rival contentions on merits nor recorded findings thereon, it would be appropriate and in the fitness of things to remit the matters to CEGAT, now to Customs, Excise and Service Tax Appellate Tribunal (CESTAT) to decide them on all points in accordance with law in the light of observations made in this judgment. | 1 | 10,977 | 1,292 | ### 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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whether ‘books’ were covered by the entry ‘plant’ under the Income Tax Act. Those decisions, therefore, have no relevance to the issue in question since the entries are different. It was also submitted that since the article in question was to be used by the assessee and was prepared according to his requirement, it had no utility to others. Hence, it cannot be said to be a ‘book’ in general sense. It was argued that this Court has considered the factual position in Parasrampuria Synthetics Ltd. and held that the article was not a book. It would not, therefore, be appropriate to hold otherwise in the present case.55. In our opinion, all these questions have to be considered and decided by the CEGAT in the fact-situation of the case in hand. As already noted by us, some of the tests applied in Parasrampuria Synthetics Ltd. were not relevant and appropriate. The CEGAT will now consider the ratio in Parasrampuria Synthetics Ltd. in the light of the observations made by us in this judgment and decide the issue raised in the instant case. 56. The matter could be looked at from another angle also. As noted earlier, HSN has dealt with the point and as per Explanatory Note, it would fall under Chapter Heading 49.01. If it is so, it would not be covered by Sub-heading 4911.99. 57. In this connection, we may refer to a three-Judge Bench decision of this Court in Collector of Central Excise, Shillong v. Wood Craft Products Ltd., (1995) 3 SCC 454 =(1995) 77 ELT 23 (SC). The Court, in that case, considered the question whether ‘plywood’ was classifiable under Sub-heading 4408.90 or Sub-heading 4410.90? HSN Explanatory Notes was considered by this Court and it was observed: “We are of the view that the Tribunal as well as the High Court fell into the error of overlooking the fact that the structure of the Central Excise Tariff is based on the internationally accepted nomenclature found in the HSN and, therefore, any dispute relating to tariff classification must, as far as possible, be resolved with reference to the nomenclature indicated by the HSN unless there be an express different intention indicated by the Central Excise Tariff Act, 1985 itself. The definition of a term in the ISI Glossary, which has a different purpose, cannot in case of a conflict, override the clear indication of the meaning of an identical expression in the same context in the HSN. In the HSN, block board is included within the meaning of the expression “similar laminated wood” in the same context of classification of block board. Since the Central Excise Tariff Act, 1985 is enacted on the basis and pattern of the HSN, the same expression used in the Act must, as far as practicable, be construed to have the meaning which is expressly given to it in the HSN when there is no indication in the Indian Tariff of a different intention.” 58. The ratio laid down in Wood Craft Products Ltd. was followed and reiterated in Collector of Central Excise, Hyderabad v. Backelite Hylam Ltd., (1997) 10 SCC 350 : (1997) 91 ELT 13 (SC), and in Collector of Customs, Bombay v. Business Forms Ltd. Thr. O.L., I (2002) SLT 791=(2002) 142 ELT 18 (SC) . Hence, even that aspect has to be considered and kept in mind while deciding as to whether Drawings, Designs and Plans could or could not be said to be ‘printed book’ covered by Chapter Headings 49.01, 49.06 or Sub-heading 4911.99? 59. There is still one more aspect which is relevant. It cannot be disputed and is not disputed before us and is also concluded by a decision of a three-Judge Bench in Associated Cement Co. Ltd. that the basic heading is 49.01. It deals with “Printed books, brochures, leaflets and similar printed matter, whether or not in single sheets”. 49.11 covers “Other printed matter, including printed pictures and photographs”. Thus, specific or basic heading is 49.01 and residual entry is 49.11. Priority, therefore, has to be given to the main entry and not the residual entry. According to the Company, the case is covered by the main entry under 49.01, and in that view of the matter, one cannot consider the residual entry 49.11. 60. In Indian Metals and Ferro Alloys Ltd., Cuttack v. Collector of Central Excise, Bhubaneshwar, 1991 Suppl. (1) SCC 125, this Court held that residuary item can be referred to and such item can be applied only when goods are shown to be not falling under any other specific item. If they are covered by a specific item, residuary item has no application.The Court stated: “One more aspect of the issue should be adverted to before we conclude. The assessee is relying upon a specific entry in the tariff schedule while the department seeks to bring the goods to charge under the residuary Item 68. It is a settled principle that unless the department can establish that the goods in question can, by no conceivable process of reasoning, be brought under any of the specific items mentioned in the tariff, resort cannot be had to the residuary item...” [See also Bharat Forge and Press Industries v. Commissioner of Central Excise, (1990) 1 SCC 532 : (1990) 45 ELT 525 (SC)].61. In our considered opinion, all these contentions raised by the assessee have to be dealt with and decided in the light of relevant statutory provisions of the Act and the Rules as also on the basis of decided cases on the point. As CEGAT has disposed of all the appeals merely on the basis of Larger Bench decision in Parasrampuria Synthetics Ltd. and has not considered rival contentions on merits nor recorded findings thereon, it would be appropriate and in the fitness of things to remit the matters to CEGAT, now to Customs, Excise and Service Tax Appellate Tribunal (CESTAT) to decide them on all points in accordance with law in the light of observations made in this judgment.
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the Act.In our opinion, the Counsel is right in submitting that when the expressionis not defined in the Act, natural and ordinary meaning of the said expression must be kept in view. According to him, nowhere it is provided that all the time characteristics or ingredients as highlighted by the learned Attorney General in Parasrampuria Synthetics Ltd. and referred to by this Court in paragraph 10 must be considered essential or sine qua non. He, therefore, submitted that a wrong test was applied by this Court in Parasrampuria Synthetics Ltd. and Scientific Engineering House Ltd. was erroneously distinguished. The proper way on the part of the Court was to consider the test laid down in Scientific Engineering House Ltd. and to come to a conclusion whether on the facts and in the circumstances of the case, Drawings, Designs and Plans in the case on hand could be said to beBy not doing so, a clear error of law had been committed and the decision deserves to be overruled.53. It was also submitted that so far as factual aspect is concerned, CEGAT was right in holding that Drawings, Designs and Plans imported by the assessee were covered by Tariff Heading 49.01 and were also entitled to exemption under Notification No. 107/93-Cus and 38/94-Cus. Alternatively, it was submitted that if this Court is of the view that CEGAT has not entered into the said question in view of the Larger Bench decision, the matter may be remitted to CEGAT directing it to consider the case afresh by applying correct test and to take an appropriate decision.54.The learned Counsel for the Revenue submitted that Elecon Engineers Ltd. and Scientific Engineering Housing Ltd. were rendered in different context. The basic issue was — whetherwere covered by the entryunder the Income TaxAct. Those decisions, therefore, have no relevance to the issue in question since the entries are different.It was also submitted that since the article in question was to be used by the assessee and was prepared according to his requirement, it had no utility to others. Hence, it cannot be said to be ain general sense. It was argued that this Court has considered the factual position in Parasrampuria Synthetics Ltd. and held that the article was not a book.It would not, therefore, be appropriate to hold otherwise in the present case.55. In our opinion, all these questions have to be considered and decided by the CEGAT in the fact-situation of the case in hand. As already noted by us, some of the tests applied in Parasrampuria Synthetics Ltd. were not relevant and appropriate. The CEGAT will now consider the ratio in Parasrampuria Synthetics Ltd. in the light of the observations made by us in this judgment and decide the issue raised in the instant case.In this connection, we may refer to a three-Judge Bench decision of this Court in Collector of Central Excise, Shillong v. Wood Craft Products Ltd., (1995) 3 SCC 454 =(1995) 77 ELT 23 (SC). The Court, in that case, considered the question whetherwas classifiable under Sub-heading 4408.90 or Sub-heading 4410.90? HSN Explanatory Notes was considered by this Court and it wasare of the view that the Tribunal as well as the High Court fell into the error of overlooking the fact that the structure of the Central Excise Tariff is based on the internationally accepted nomenclature found in the HSN and, therefore, any dispute relating to tariff classification must, as far as possible, be resolved with reference to the nomenclature indicated by the HSN unless there be an express different intention indicated by the Central Excise Tariff Act, 1985 itself. The definition of a term in the ISI Glossary, which has a different purpose, cannot in case of a conflict, override the clear indication of the meaning of an identical expression in the same context in the HSN. In the HSN, block board is included within the meaning of the expressionin the same context of classification of block board. Since the Central Excise Tariff Act, 1985 is enacted on the basis and pattern of the HSN, the same expression used in the Act must, as far as practicable, be construed to have the meaning which is expressly given to it in the HSN when there is no indication in the Indian Tariff of a different intention.In Indian Metals and Ferro Alloys Ltd., Cuttack v. Collector of Central Excise, Bhubaneshwar, 1991 Suppl. (1) SCC 125, this Court held that residuary item can be referred to and such item can be applied only when goods are shown to be not falling under any other specific item. If they are covered by a specific item, residuary item has no application.The Courtmore aspect of the issue should be adverted to before we conclude. The assessee is relying upon a specific entry in the tariff schedule while the department seeks to bring the goods to charge under the residuary Item 68. It is a settled principle that unless the department can establish that the goods in question can, by no conceivable process of reasoning, be brought under any of the specific items mentioned in the tariff, resort cannot be had to the residuary[See also Bharat Forge and Press Industries v. Commissioner of Central Excise, (1990) 1 SCC 532 : (1990) 45 ELT 525 (SC)].61. In our considered opinion, all these contentions raised by the assessee have to be dealt with and decided in the light of relevant statutory provisions of the Act and the Rules as also on the basis of decided cases on the point. As CEGAT has disposed of all the appeals merely on the basis of Larger Bench decision in Parasrampuria Synthetics Ltd. and has not considered rival contentions on merits nor recorded findings thereon, it would be appropriate and in the fitness of things to remit the matters to CEGAT, now to Customs, Excise and Service Tax Appellate Tribunal (CESTAT) to decide them on all points in accordance with law in the light of observations made in this judgment.
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Dr. Satya Churn Law and Others Vs. Rameshwar Prosad Bajoria and Others | may by the regulations be entrusted with the control of the business, and if so entrusted they can be dispossessed from that control only by the statutory majority which can alter the articles. Directors are not, I think, bound to comply with the directions even of all the corporators acting as individuals.This statement of the law cannot be questioned, but, as the learned author has himself pointed out, there may be exceptions, such as when the directors are acting mala fide and the case of Marshalls Valve Gear Company, Limited v. manning, Wardle & Co., Limited has been cited by him as a possible illustration of the exception. In that case, the directors of a company had the entire management of the company and their powers were defined in almost the same terms as the powers of the directors in the present case. One of these directors, Marshall, held 42, 900 shares, the other three directors held 28, 000 shares, and the remaining 600 shares were held by others. The three directors who held Defendant company. At a directors meeting Marshall proposed a suit against the Defendant company for infringement of patent rights. The other three directors overruled his proposition. He, therefore, brought a suit against the Defendant in name of the company. Thereafter, at a meeting of the Board of Directors of the Plaintiff company, which Marshall did not attend, a resolution was passed that a Marshall had instituted a suit in the name of the company without the sanction of the Board of Directors, the solicitors of the company should be instructed to apply to the Court to have the name of the company struck out. The matter ultimately came up before Neville, J., who dismissed the motion for striking out the name of the company and observed : The company is of course the owner of Marshalls patent, and alone able to litigate for the protection of that patent. The three directors had, in what I will assume to be the exercise of their discretion, refused on behalf of the company to oppose the grant of the patent to themselves or to those from whom they acquired it, and they have refused to commence, or to allow to proceed so far as they can help it, any action for the purpose of establishing that the new patent is an infringement of the patent of the company. New it is obvious that in the position in which they have placed themselves on this question their duty and their interest are in direct conflict. On the one hand it is their duty as directors to protect the interests of the original patent, which is the property of the company; on the other hand their personal interests are clearly to maintain the validity of the patent which belongs to them, and which, it is alleged, is an infringement. Mr. Marshall has commenced an action in the name of the company for the purpose of restraining an alleged infringement on the part of the owners of the new patent, and the other directors come to the Court and ask to have the writ in that action taken off the file on the ground that the action was commenced without the authority of the company. It admitted that the calling of a meeting of share-holders to ascertain the wishes of the company would be useless because the position of the voting power is perfectly well understood. It is divided between the persons concerned, and undoubtedly the managing director, who has commenced this action, would have the majority of votes at a general meeting, and, therefore, if it is right that effect should be given to the wishes of the majority of the company in the present case, it is admitted that no object is to be gained by calling a meeting because the result of that meeting is a foregone conclusion. Under these circumstances ought the Court to direct the removal of the writ ? The learned Judge answered the question posed by him, in the negative, and, while referring to the case of Automatic Self-Cleansing Filter Syndicate Co. v. Cunninghame expressed the view that the decision in that case was not inconsistent with any of the decisions that had preceded it, though some of the observations made by the learned Judge in that case extended beyond any of the decisions in the previous cases and appeared to be inconsistent with the law as it stood at the time when that case was decided. 12. The correct position seems to us to be that ordinarily the directors of a company are the only persons who can conduct litigation in the name of the company, but when they are themselves the wrongdoers against the company and have acted male fide or beyond their powers, and their personal interest is in conflict with their duty in such a way that they cannot or will not take steps to seek redress for the wrong done to the company, the majority of the share-holders must in such a case be entitled to take steps to redress the wrong. There is no provision in the Articles of Association to meet the contingency, and, therefore, the rule which has been laid down in a long line of cases that in such circumstances the majority of the share-holders can sue in the name of the company must apply. In MacDougall v. Gardiner and Pender v. Lushington, specific reference was made to the fact that the directors, being the custodians of the seal of the company, were the persons who should normally sue in the name of the company, but nevertheless it was held that the majority of the share-holders were entitled to sue in the name of the company when relief was sought against the directors themselves. Even in Automatic Self-Cleansing Filter Syndicate Company, Ltd. v. Cunninghame, it was recognised that misconduct on the part of the directors provided an exception to the rule laid down in that case. | 0[ds]It may be stated here that though no meeting of the ordinary share-holders was held for the purpose of authorizing the Plaintiffs to file the present suit on behalf of the Company, it was conceded by for the Defendants before Edgley, J., that it would be unnecessary that such a meeting should be held in order to ascertain the wishes of the majority of the share-holders inasmuch as the Plaintiffs commanded a majority of the votes of the ordinary share-holders. The case has, therefore, proceeded in both the Courts below on the footing that at a meeting of the ordinary share-holders, the Plaintiffs would be able by a majority to assure the passage of a resolution empowering them to continue the suit. The case has also proceeded on the footing that whatever the ultimate decision in regard to the Plaintiffs allegations might be, for the purpose of deciding the preliminary issue, it must be assumed that the acts complained of by the Plaintiffs, namely, the removal of Plaintiff No. 1 from the board of directors and the appointment of Sir David Ezra, were due to the fraudulent conduct of the Defendants, were illegal and were detrimental to the interests of the company.It seems to be well-settled now that in order to redress a wrong done to a company or to recover monies or damages alleged to be due to the company, the action should prima facie be brought by the company itself. [See Fose v. Harbottle, Mozley v. Alston and MacDougall v. Gardiner].9. These cases make it quite clear that ordinarily the company would be a proper Plaintiff in a case like the present11. The effect of these cases is summarized by Buckley in his book on Companies (11th Edition, p. 723) in these words :-12. The correct position seems to us to be that ordinarily the directors of a company are the only persons who can conduct litigation in the name of the company, but when they are themselves the wrongdoers against the company and have acted male fide or beyond their powers, and their personal interest is in conflict with their duty in such a way that they cannot or will not take steps to seek redress for the wrong done to the company, the majority of the share-holders must in such a case be entitled to take steps to redress the wrong. There is no provision in the Articles of Association to meet the contingency, and, therefore, the rule which has been laid down in a long line of cases that in such circumstances the majority of the share-holders can sue in the name of the company must apply. In MacDougall v. Gardiner and Pender v. Lushington, specific reference was made to the fact that the directors, being the custodians of the seal of the company, were the persons who should normally sue in the name of the company, but nevertheless it was held that the majority of the share-holders were entitled to sue in the name of the company when relief was sought against the directors themselves. Even in Automatic Self-Cleansing Filter Syndicate Company, Ltd. v. Cunninghame, it was recognised that misconduct on the part of the directors provided an exception to the rule laid down in that case | 0 | 5,555 | 591 | ### 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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may by the regulations be entrusted with the control of the business, and if so entrusted they can be dispossessed from that control only by the statutory majority which can alter the articles. Directors are not, I think, bound to comply with the directions even of all the corporators acting as individuals.This statement of the law cannot be questioned, but, as the learned author has himself pointed out, there may be exceptions, such as when the directors are acting mala fide and the case of Marshalls Valve Gear Company, Limited v. manning, Wardle & Co., Limited has been cited by him as a possible illustration of the exception. In that case, the directors of a company had the entire management of the company and their powers were defined in almost the same terms as the powers of the directors in the present case. One of these directors, Marshall, held 42, 900 shares, the other three directors held 28, 000 shares, and the remaining 600 shares were held by others. The three directors who held Defendant company. At a directors meeting Marshall proposed a suit against the Defendant company for infringement of patent rights. The other three directors overruled his proposition. He, therefore, brought a suit against the Defendant in name of the company. Thereafter, at a meeting of the Board of Directors of the Plaintiff company, which Marshall did not attend, a resolution was passed that a Marshall had instituted a suit in the name of the company without the sanction of the Board of Directors, the solicitors of the company should be instructed to apply to the Court to have the name of the company struck out. The matter ultimately came up before Neville, J., who dismissed the motion for striking out the name of the company and observed : The company is of course the owner of Marshalls patent, and alone able to litigate for the protection of that patent. The three directors had, in what I will assume to be the exercise of their discretion, refused on behalf of the company to oppose the grant of the patent to themselves or to those from whom they acquired it, and they have refused to commence, or to allow to proceed so far as they can help it, any action for the purpose of establishing that the new patent is an infringement of the patent of the company. New it is obvious that in the position in which they have placed themselves on this question their duty and their interest are in direct conflict. On the one hand it is their duty as directors to protect the interests of the original patent, which is the property of the company; on the other hand their personal interests are clearly to maintain the validity of the patent which belongs to them, and which, it is alleged, is an infringement. Mr. Marshall has commenced an action in the name of the company for the purpose of restraining an alleged infringement on the part of the owners of the new patent, and the other directors come to the Court and ask to have the writ in that action taken off the file on the ground that the action was commenced without the authority of the company. It admitted that the calling of a meeting of share-holders to ascertain the wishes of the company would be useless because the position of the voting power is perfectly well understood. It is divided between the persons concerned, and undoubtedly the managing director, who has commenced this action, would have the majority of votes at a general meeting, and, therefore, if it is right that effect should be given to the wishes of the majority of the company in the present case, it is admitted that no object is to be gained by calling a meeting because the result of that meeting is a foregone conclusion. Under these circumstances ought the Court to direct the removal of the writ ? The learned Judge answered the question posed by him, in the negative, and, while referring to the case of Automatic Self-Cleansing Filter Syndicate Co. v. Cunninghame expressed the view that the decision in that case was not inconsistent with any of the decisions that had preceded it, though some of the observations made by the learned Judge in that case extended beyond any of the decisions in the previous cases and appeared to be inconsistent with the law as it stood at the time when that case was decided. 12. The correct position seems to us to be that ordinarily the directors of a company are the only persons who can conduct litigation in the name of the company, but when they are themselves the wrongdoers against the company and have acted male fide or beyond their powers, and their personal interest is in conflict with their duty in such a way that they cannot or will not take steps to seek redress for the wrong done to the company, the majority of the share-holders must in such a case be entitled to take steps to redress the wrong. There is no provision in the Articles of Association to meet the contingency, and, therefore, the rule which has been laid down in a long line of cases that in such circumstances the majority of the share-holders can sue in the name of the company must apply. In MacDougall v. Gardiner and Pender v. Lushington, specific reference was made to the fact that the directors, being the custodians of the seal of the company, were the persons who should normally sue in the name of the company, but nevertheless it was held that the majority of the share-holders were entitled to sue in the name of the company when relief was sought against the directors themselves. Even in Automatic Self-Cleansing Filter Syndicate Company, Ltd. v. Cunninghame, it was recognised that misconduct on the part of the directors provided an exception to the rule laid down in that case.
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It may be stated here that though no meeting of the ordinary share-holders was held for the purpose of authorizing the Plaintiffs to file the present suit on behalf of the Company, it was conceded by for the Defendants before Edgley, J., that it would be unnecessary that such a meeting should be held in order to ascertain the wishes of the majority of the share-holders inasmuch as the Plaintiffs commanded a majority of the votes of the ordinary share-holders. The case has, therefore, proceeded in both the Courts below on the footing that at a meeting of the ordinary share-holders, the Plaintiffs would be able by a majority to assure the passage of a resolution empowering them to continue the suit. The case has also proceeded on the footing that whatever the ultimate decision in regard to the Plaintiffs allegations might be, for the purpose of deciding the preliminary issue, it must be assumed that the acts complained of by the Plaintiffs, namely, the removal of Plaintiff No. 1 from the board of directors and the appointment of Sir David Ezra, were due to the fraudulent conduct of the Defendants, were illegal and were detrimental to the interests of the company.It seems to be well-settled now that in order to redress a wrong done to a company or to recover monies or damages alleged to be due to the company, the action should prima facie be brought by the company itself. [See Fose v. Harbottle, Mozley v. Alston and MacDougall v. Gardiner].9. These cases make it quite clear that ordinarily the company would be a proper Plaintiff in a case like the present11. The effect of these cases is summarized by Buckley in his book on Companies (11th Edition, p. 723) in these words :-12. The correct position seems to us to be that ordinarily the directors of a company are the only persons who can conduct litigation in the name of the company, but when they are themselves the wrongdoers against the company and have acted male fide or beyond their powers, and their personal interest is in conflict with their duty in such a way that they cannot or will not take steps to seek redress for the wrong done to the company, the majority of the share-holders must in such a case be entitled to take steps to redress the wrong. There is no provision in the Articles of Association to meet the contingency, and, therefore, the rule which has been laid down in a long line of cases that in such circumstances the majority of the share-holders can sue in the name of the company must apply. In MacDougall v. Gardiner and Pender v. Lushington, specific reference was made to the fact that the directors, being the custodians of the seal of the company, were the persons who should normally sue in the name of the company, but nevertheless it was held that the majority of the share-holders were entitled to sue in the name of the company when relief was sought against the directors themselves. Even in Automatic Self-Cleansing Filter Syndicate Company, Ltd. v. Cunninghame, it was recognised that misconduct on the part of the directors provided an exception to the rule laid down in that case
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Satya Narain Pandey Vs. State Of U.P. & Others | continuing to read those restrictions merely because they were applicable at one time to the property." 16. Naturally the question would arise as to how the question regarding the applicability of the Act is to be determined. It can certainly not be ipse dixit of the landlord. If a landlord acts on his own and lets out the property or otherwise deals with it, he takes the risk and, if he is found at fault, will not only render himself punishable but will also be unable to resist an allotment of the property by the District Magistrate in due course. Since the District Magistrate has been empowered to deal with buildings to which the Act applies, it is for the District Magistrate to satisfy himself, before he proceeds to deal with any premises, that it is in fact a building to which the provisions of the Act are applicable. It is open to the landlord to intimate the vacancy but make a claim before the District Magistrate that the Act has ceased to be applicable to his building but he is not obliged to do this. Where the landlord fails to do so, the Magistrate may consider the issue if the vacancy in respect of the building is brought to his notice. The District Magistrate has powers to inspect the property and then decide whether the Act continues to apply or not. It is for the District Magistrate to consider the circumstances and to satisfy himself that the landlord intends to let out the premises for one of the purposes specified and, in respect of clauses (c) and (d), that he intends to let it out not as a mere building but with plant and apparatus. We would like to make it clear, however, that, in this process, the District Magistrate has to satisfy himself on the materials made available to him. But it will not be incumbent or proper on his part to gave notice to or convene any of the proposed allottees of the property and hear them on this issue. Whether a building is one to which the provisions of the Act are applicable or not is a matter which has to be decided by the District Magistrate after hearing the landlord. It is a matter between the landlord and the government. An application for allotment merely confers on the applicant a right to be considered for allotment of a building to which the provisions of the Act are applicable, and he has no rights qua any property until the District Magistrate comes to the conclusion that the building is one which he can deal with by way of allotment. 17. It was contended on behalf of the appellants that the present case may be remanded back to the District Magistrate for a determination, after hearing the appellants, also on the question whether the landlords in the present case are entitled to an exemption. We are unable to agree. We are of the opinion that this determination has to be arrived at by the District Magistrate after hearing the landlord and on the basis of such inspection or enquiries as he may consider necessary. We are clearly of the opinion that at this stage he should not permit the intervention of any other party. A contrary interpretation would make the provisions almost impossible of being worked. There may be several applicants for allotment, some general and some with regard to the specific property. If they are considered as having a right to be heard on the availability of a property for allotment, every one of them must be allowed to intervene. Different persons might come in at different stages and challenge the contention of the landlord that the building is not available for allotment. The landlord may have to face innumerable challenges by various applicants at different points of time and they might claim that they want to lead evidence and thus delay the proceedings. We do not think that all this envisaged under the Act. It is for the District Magistrate to come to the conclusion whether a building is available for allotment or not, and once he decides that it is not a building to which the Act applies, that is an end of the matter. If he comes to a conclusion that the building falls within the provisions of the Act and the landlord is aggrieved, the landlords remedy has only to be by way of a writ petition where such conclusion is on its face erroneous or based on no material or perverse. 18. In the present case, the District Magistrate registered the vacancy on March 6, 1987; in other words, he came to a conclusion, mainly on the basis of the appellants averments, that the Act continues to be applicable to the premises. The landlords challenged this conclusion successfully in the writ petition. As pointed out by them, subsequent to March 6, 1987, the District Magistrate himself had the property inspected and there is a report available on record. Apparently, the District Magistrate has not applied his mind to the terms of the report. Perhaps, in the normal course, we would have sent the matter back to enable him to do this. However, in the circumstances of the present case, we think no useful purpose would be served by remitting the matter back to the District Magistrate for fresh consideration. As pointed out by the High Court, the report of the Sub-Divisional Magistrate, the terms of the lease agreement and the registered lease deed as well as the application for, and the grant of, a cinematographic licence in the name of the Mehrotras, clearly show that the landlord intended to let out the property as a fully equipped cinema theatre and that they have done so. In the face of this evidence, the District Magistrate had clearly no jurisdiction to proceed with the allotment of the premises in question. We would, therefore, uphold the findings of the High Court in this regard. | 0[ds]There is no dispute that, as on that date, the building was subject to the provisions of the Act. That being so, and a vacancy having arisen in such a building, it was the duty of the landlords to have intimated the same to the District Magistrate and then gone through the procedure prescribed under the Act before letting out the property to any person. Any letting out of the property by them to the Mehrotras was unlawful in view of Section 13 of the Act and the landlords cannot be heard to contend, on the strength of such an unlawful letting that the premises stand outside the purview of the Act. We are unable to agree. We are of the opinion that this determination has to be arrived at by the District Magistrate after hearing the landlord and on the basis of such inspection or enquiries as he may consider necessary. We are clearly of the opinion that at this stage he should not permit the intervention of any other party. A contrary interpretation would make the provisions almost impossible of being worked. There may be several applicants for allotment, some general and some with regard to the specific property. If they are considered as having a right to be heard on the availability of a property for allotment, every one of them must be allowed to intervene. Different persons might come in at different stages and challenge the contention of the landlord that the building is not available for allotment. The landlord may have to face innumerable challenges by various applicants at different points of time and they might claim that they want to lead evidence and thus delay the proceedings. We do not think that all this envisaged under the Act. It is for the District Magistrate to come to the conclusion whether a building is available for allotment or not, and once he decides that it is not a building to which the Act applies, that is an end of the matter. If he comes to a conclusion that the building falls within the provisions of the Act and the landlord is aggrieved, the landlords remedy has only to be by way of a writ petition where such conclusion is on its face erroneous or based on no material or perverse18. In the present case, the District Magistrate registered the vacancy on March 6, 1987; in other words, he came to a conclusion, mainly on the basis of the appellants averments, that the Act continues to be applicable to the premises. The landlords challenged this conclusion successfully in the writ petition. As pointed out by them, subsequent to March 6, 1987, the District Magistrate himself had the property inspected and there is a report available on record. Apparently, the District Magistrate has not applied his mind to the terms of the report. Perhaps, in the normal course, we would have sent the matter back to enable him to do this. However, in the circumstances of the present case, we think no useful purpose would be served by remitting the matter back to the District Magistrate for fresh consideration. As pointed out by the High Court, the report of the Sub-Divisional Magistrate, the terms of the lease agreement and the registered lease deed as well as the application for, and the grant of, a cinematographic licence in the name of the Mehrotras, clearly show that the landlord intended to let out the property as a fully equipped cinema theatre and that they have done so. In the face of this evidence, the District Magistrate had clearly no jurisdiction to proceed with the allotment of the premises in question. We would, therefore, uphold the findings of the High Court in this regardThe other controversy in C.A. No. 1502 of 1987 regarding the grant of the cinema licence to the Mehrotras need not detain us long. The High Court was clearly right in holding that Pandey had no locus standi in the matter. However, the issue of a valid licence to Mehrotras will ultimately depend on the outcome of their right to occupy the premises in question. If Pandey succeeds in his contention that the building continues to be subject to the provisions of the Act, then, obviously, the allotment of the building on its vacation by the Sharmas will have to be made by the Additional District Magistrate in accordance with law and the Mehrotras will not be in a position to occupy the building and run the cinema theatre in pursuance of the lease deed and the licence obtained by them. This is clear from the provision contained in Section 13 of the Act. If, on the other hand, the contention of Pandey is not acceptable, then the Mehrotras will be entitled to run the theatre in pursuance of the lease deed in exercise of the cinematographic licence obtained by them. In this view of the matter, the grant of licence to the Mehrotras recedes to the background and is only relevant to this extent that, in case the lease of the building to the Mehrotras is held to be contrary to the provisions of the Act, they may not be entitled to the licence, a condition precedent for which will be the availability, to the exhibitor, of a building in which he has a right to exhibit cinema shows. We may, therefore, leave the controversy in Civil Appeal No. 1502 of 1987, aside for the time being. We shall, therefore, grant special leave to Pandey in the special leave petitions and proceed to dispose of the same, as we have heard the learned counsel on both sides9. The clear effect of this section is that if any building falls under any one of the above clauses, it is exempt from the operation of the Act11. Though there is a plausibility in the contention urged on behalf of the appellant, we are of opinion, on a careful consideration of the scheme and language of the Act, that the judgment of the High Court should be affirmed and the appeals dismissed12. Section 2(1) of the Act exempts from the operation of the Act various classes of buildings set out in clauses (a) to (f) of that. The initial attempt on behalf of the appellants was to suggest that the above exemptions are available only where the premises in question was of the nature specified in one or the other of those clauses as on the date of the commencement of the Act, namely, July 15, 1972. We cannot accept this contention. A perusal of the various clauses makes it clear that the building should fulfil the character indicated therein on the date on which the provisions of the Act are sought to be made applicable thereto. To give an illustration, clause (a) exempts "any building of which the government or a local authority or a public sector corporation is the landlord". In ore opinion it is clear that even a building which might have belonged to private individuals since 1972 will automatically fall within this exemption clause as soon as it is purchased by the government or a local authority or a public sector corporation. It will not be correct to read the section as conferring an exemption only on the buildings which belonged to the government etc. on July 15, 1972 and not to those acquired by them thereafter. The position must be construed likewise in respect of the other clauses tooThere is no dispute that, as on that date, the building was subject to the provisions of the Act. That being so, and a vacancy having arisen in such a building, it was the duty of the landlords to have intimated the same to the District Magistrate and then gone through the procedure prescribed under the Act before letting out the property to any person. Any letting out of the property by them to the Mehrotras was unlawful in view of Section 13 of the Act and the landlords cannot be heard to contend, on the strength of such an unlawful letting that the premises stand outside the purview of theAct.There is, as we said earlier, a plausibility about this contention but, in our opinion, it cannot be accepted as this construction of the provisions would render the exemption section totally unworkable14. We may first consider the nature of the exemption conferred by Section 2(1). It takes out of the provisions of the Act certain classes of buildings. Some of these exemptions are based on the nature of the ownership of the property and some of them on the nature of the use to which the property is either put or intended to be put. So far as the former is concerned, there can be no doubt that any building that satisfies the ownership requirements set out therein automatically goes outside the purview of theAct.Thus, under clauses (a) and (b), even if a building was previously subject to the provisions of the Act, it will cease to be so the moment it is purchased by a government or a local authority or a public sector corporation or a recognised educational institution. The vesting of the ownership of the premises in one of the categories of bodies mentioned effects a statutory cut off of the building from the applicability of the provisions of theAct.The exclusion of the Act would be automatic and does not need any application by the previous or subsequent landlord or any order by the Additional District Magistrate under any of the provisions of theAct.So far as clauses (e) and (f) are concerned the exemption depends upon the nature of the use to which the property is put. There is no difficulty in cases where the building, at the time it falls vacant, was actually used for the purposes specified in these clauses : say, as a place of public entertainment or amusement. It would, like the buildings described in clauses (a) and (b) fall outside the provisions of theAct.So far there is no difficulty. But the exemption conferred by these clauses takes in not only actual user but also intended user; that is, the use to which the property is proposed to be put, whatever may have been the use it was put to earlier. Thus, if a building let out privately earlier, is intended to be used as a place of amusement or entertainment or a cooperative society decides to convert a flat let out to an outsider earlier into one for occupation by its own officer, it will stand outside the purview of theAct.Now we come to clauses (c) and (d) which not only talk of user or intended user but also impose a further requirement that plant and apparatus "is leased out along with the building". This creates a somewhat anomalous situationIn our opinion this is not the correct interpretation of these clauses. What they exempt are : "a building intended to be used as a factory .... where the plant of such factory is leased out along with the building" and a "building intended to be used for any other industrial purpose or a cinema or theatre where the plant and apparatus installed for such purpose in the building is leased out along with the building". Each of these clauses should be read as a whole and doing so, the exemption is not restricted only to cases where there is a prior valid lease of the building with plant and apparatus but would also extend to cases where, though the building earlier was without such plant and apparatus or was not being used for such purposes as are specified, the owner intends to put them to the specified uses by letting them out with the necessary plant and apparatus. The words "is leased", therefore, do not connote the idea of a valid actual subsisting lease of the building with plant on the date of vacancy; they are only descriptive of the manner in which the building is intended to be used. What is needed is (a) that the building should be intended to be used, by the prospective tenant, for the purpose specified in either of the clauses and (b) that in order to facilitate the purpose being achieved the building is intended to be let out to him along with necessary plant and apparatus. In our view, therefore, even in respect of a building covered by the Act, the Act will cease to be applicable if, on a vacancy occurring therein, the landlord intends to put it to the use specified in clauses (c) to (f) and, in cases covered by clauses (c) and (d), also intends to let it out for such use along with the plant and apparatus necessary therefor15. We lean in favour of this interpretation, of an automatic exclusion of certain classes of buildings from the purview of the Act, for the following reasons(i) The declaration in Section 2(1) that nothing in the Act applies to the classes of buildings mentioned therein has to be given effect to. It is patent that buildings falling under clauses (a) and (b) go out automatically. A different rule cannot apply in respect of the other clauses(ii) The Act does not contain any provision or machinery whereby the owner of a building subject to the provisions of the Act can ask the District Magistrate or other authority to record the purchase of the property by the bodies specified in clauses (a) and (b) or to grant permission for converting it into a category of building for which exemption would be applicable under clauses (c) to (f). It does not specifically confer jurisdiction on any authority to adjudicate upon a claim that a building falls within the exemption clause and that the provisions of the Act are, therefore, not applicable to it(iii) On the other hand, under the scheme of the Act on there being a vacancy in a building to which the Act applies, it can only bed in terms of either an allotment order or a release order. A release order under Section 16 can be only got in certain circumstances. It cannot be obtained by a landlord for the mere asking. The District Magistrate cannot release the building to the landlord, even if he is satisfied of the landlords intention to use the building in the manner specified in one of the clauses of Section 2(1) and his intention to let it out with plant and apparatus. This being so, the interpretation suggested by the appellants would mean that, once a building is subject to the provisions of the Act, it can never be taken out of the Act even if the requirements of clauses (A) and (b) or the intended user in terms of clauses (c) to (f) of Section 2(1) can be established(iv) The above interpretation does not result in facilitating any avoidance of the provisions of the Act as contended for by the appellants. As rightly pointed out on behalf of the landlords, the Act is intended to regulate the letting of the premises but it is not intended to curb commercial activities or to impair the right of the landlord to change the nature of the use to which his building should be put. Rather, the manner in which clauses (c) to (f) are phrased would show that the intention of the legislature was to exempt buildings used or intended to be used for commercial or industrial purposes and that intention should be given effect to. A lease given by the landlord in this manner cannot be attacked as illegal or collusive to get over the provisions of the Act as there is nothing in law to prevent the landlord from doing so(v) The appellants argument overlooks that the restrictions in Sections 11, 13, 16 and other provisions are all applicable only where the building does not fall under Section 2(1). When it does, the right of the landlord to let it out to a tenant of his choice cannot be defeated by continuing to read those restrictions merely because they were applicable at one time to the propertyIt can certainly not be ipse dixit of the landlord. If a landlord acts on his own and lets out the property or otherwise deals with it, he takes the risk and, if he is found at fault, will not only render himself punishable but will also be unable to resist an allotment of the property by the District Magistrate in due course. Since the District Magistrate has been empowered to deal with buildings to which the Act applies, it is for the District Magistrate to satisfy himself, before he proceeds to deal with any premises, that it is in fact a building to which the provisions of the Act are applicable. It is open to the landlord to intimate the vacancy but make a claim before the District Magistrate that the Act has ceased to be applicable to his building but he is not obliged to do this. Where the landlord fails to do so, the Magistrate may consider the issue if the vacancy in respect of the building is brought to his notice. The District Magistrate has powers to inspect the property and then decide whether the Act continues to apply or not. It is for the District Magistrate to consider the circumstances and to satisfy himself that the landlord intends to let out the premises for one of the purposes specified and, in respect of clauses (c) and (d), that he intends to let it out not as a mere building but with plant and apparatus. We would like to make it clear, however, that, in this process, the District Magistrate has to satisfy himself on the materials made available to him. But it will not be incumbent or proper on his part to gave notice to or convene any of the proposed allottees of the property and hear them on this issue. Whether a building is one to which the provisions of the Act are applicable or not is a matter which has to be decided by the District Magistrate after hearing the landlord. It is a matter between the landlord and the government. An application for allotment merely confers on the applicant a right to be considered for allotment of a building to which the provisions of the Act are applicable, and he has no rights qua any property until the District Magistrate comes to the conclusion that the building is one which he can deal with by way of allotment | 0 | 6,816 | 3,421 | ### Instruction:
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continuing to read those restrictions merely because they were applicable at one time to the property." 16. Naturally the question would arise as to how the question regarding the applicability of the Act is to be determined. It can certainly not be ipse dixit of the landlord. If a landlord acts on his own and lets out the property or otherwise deals with it, he takes the risk and, if he is found at fault, will not only render himself punishable but will also be unable to resist an allotment of the property by the District Magistrate in due course. Since the District Magistrate has been empowered to deal with buildings to which the Act applies, it is for the District Magistrate to satisfy himself, before he proceeds to deal with any premises, that it is in fact a building to which the provisions of the Act are applicable. It is open to the landlord to intimate the vacancy but make a claim before the District Magistrate that the Act has ceased to be applicable to his building but he is not obliged to do this. Where the landlord fails to do so, the Magistrate may consider the issue if the vacancy in respect of the building is brought to his notice. The District Magistrate has powers to inspect the property and then decide whether the Act continues to apply or not. It is for the District Magistrate to consider the circumstances and to satisfy himself that the landlord intends to let out the premises for one of the purposes specified and, in respect of clauses (c) and (d), that he intends to let it out not as a mere building but with plant and apparatus. We would like to make it clear, however, that, in this process, the District Magistrate has to satisfy himself on the materials made available to him. But it will not be incumbent or proper on his part to gave notice to or convene any of the proposed allottees of the property and hear them on this issue. Whether a building is one to which the provisions of the Act are applicable or not is a matter which has to be decided by the District Magistrate after hearing the landlord. It is a matter between the landlord and the government. An application for allotment merely confers on the applicant a right to be considered for allotment of a building to which the provisions of the Act are applicable, and he has no rights qua any property until the District Magistrate comes to the conclusion that the building is one which he can deal with by way of allotment. 17. It was contended on behalf of the appellants that the present case may be remanded back to the District Magistrate for a determination, after hearing the appellants, also on the question whether the landlords in the present case are entitled to an exemption. We are unable to agree. We are of the opinion that this determination has to be arrived at by the District Magistrate after hearing the landlord and on the basis of such inspection or enquiries as he may consider necessary. We are clearly of the opinion that at this stage he should not permit the intervention of any other party. A contrary interpretation would make the provisions almost impossible of being worked. There may be several applicants for allotment, some general and some with regard to the specific property. If they are considered as having a right to be heard on the availability of a property for allotment, every one of them must be allowed to intervene. Different persons might come in at different stages and challenge the contention of the landlord that the building is not available for allotment. The landlord may have to face innumerable challenges by various applicants at different points of time and they might claim that they want to lead evidence and thus delay the proceedings. We do not think that all this envisaged under the Act. It is for the District Magistrate to come to the conclusion whether a building is available for allotment or not, and once he decides that it is not a building to which the Act applies, that is an end of the matter. If he comes to a conclusion that the building falls within the provisions of the Act and the landlord is aggrieved, the landlords remedy has only to be by way of a writ petition where such conclusion is on its face erroneous or based on no material or perverse. 18. In the present case, the District Magistrate registered the vacancy on March 6, 1987; in other words, he came to a conclusion, mainly on the basis of the appellants averments, that the Act continues to be applicable to the premises. The landlords challenged this conclusion successfully in the writ petition. As pointed out by them, subsequent to March 6, 1987, the District Magistrate himself had the property inspected and there is a report available on record. Apparently, the District Magistrate has not applied his mind to the terms of the report. Perhaps, in the normal course, we would have sent the matter back to enable him to do this. However, in the circumstances of the present case, we think no useful purpose would be served by remitting the matter back to the District Magistrate for fresh consideration. As pointed out by the High Court, the report of the Sub-Divisional Magistrate, the terms of the lease agreement and the registered lease deed as well as the application for, and the grant of, a cinematographic licence in the name of the Mehrotras, clearly show that the landlord intended to let out the property as a fully equipped cinema theatre and that they have done so. In the face of this evidence, the District Magistrate had clearly no jurisdiction to proceed with the allotment of the premises in question. We would, therefore, uphold the findings of the High Court in this regard.
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specified in clauses (c) to (f) and, in cases covered by clauses (c) and (d), also intends to let it out for such use along with the plant and apparatus necessary therefor15. We lean in favour of this interpretation, of an automatic exclusion of certain classes of buildings from the purview of the Act, for the following reasons(i) The declaration in Section 2(1) that nothing in the Act applies to the classes of buildings mentioned therein has to be given effect to. It is patent that buildings falling under clauses (a) and (b) go out automatically. A different rule cannot apply in respect of the other clauses(ii) The Act does not contain any provision or machinery whereby the owner of a building subject to the provisions of the Act can ask the District Magistrate or other authority to record the purchase of the property by the bodies specified in clauses (a) and (b) or to grant permission for converting it into a category of building for which exemption would be applicable under clauses (c) to (f). It does not specifically confer jurisdiction on any authority to adjudicate upon a claim that a building falls within the exemption clause and that the provisions of the Act are, therefore, not applicable to it(iii) On the other hand, under the scheme of the Act on there being a vacancy in a building to which the Act applies, it can only bed in terms of either an allotment order or a release order. A release order under Section 16 can be only got in certain circumstances. It cannot be obtained by a landlord for the mere asking. The District Magistrate cannot release the building to the landlord, even if he is satisfied of the landlords intention to use the building in the manner specified in one of the clauses of Section 2(1) and his intention to let it out with plant and apparatus. This being so, the interpretation suggested by the appellants would mean that, once a building is subject to the provisions of the Act, it can never be taken out of the Act even if the requirements of clauses (A) and (b) or the intended user in terms of clauses (c) to (f) of Section 2(1) can be established(iv) The above interpretation does not result in facilitating any avoidance of the provisions of the Act as contended for by the appellants. As rightly pointed out on behalf of the landlords, the Act is intended to regulate the letting of the premises but it is not intended to curb commercial activities or to impair the right of the landlord to change the nature of the use to which his building should be put. Rather, the manner in which clauses (c) to (f) are phrased would show that the intention of the legislature was to exempt buildings used or intended to be used for commercial or industrial purposes and that intention should be given effect to. A lease given by the landlord in this manner cannot be attacked as illegal or collusive to get over the provisions of the Act as there is nothing in law to prevent the landlord from doing so(v) The appellants argument overlooks that the restrictions in Sections 11, 13, 16 and other provisions are all applicable only where the building does not fall under Section 2(1). When it does, the right of the landlord to let it out to a tenant of his choice cannot be defeated by continuing to read those restrictions merely because they were applicable at one time to the propertyIt can certainly not be ipse dixit of the landlord. If a landlord acts on his own and lets out the property or otherwise deals with it, he takes the risk and, if he is found at fault, will not only render himself punishable but will also be unable to resist an allotment of the property by the District Magistrate in due course. Since the District Magistrate has been empowered to deal with buildings to which the Act applies, it is for the District Magistrate to satisfy himself, before he proceeds to deal with any premises, that it is in fact a building to which the provisions of the Act are applicable. It is open to the landlord to intimate the vacancy but make a claim before the District Magistrate that the Act has ceased to be applicable to his building but he is not obliged to do this. Where the landlord fails to do so, the Magistrate may consider the issue if the vacancy in respect of the building is brought to his notice. The District Magistrate has powers to inspect the property and then decide whether the Act continues to apply or not. It is for the District Magistrate to consider the circumstances and to satisfy himself that the landlord intends to let out the premises for one of the purposes specified and, in respect of clauses (c) and (d), that he intends to let it out not as a mere building but with plant and apparatus. We would like to make it clear, however, that, in this process, the District Magistrate has to satisfy himself on the materials made available to him. But it will not be incumbent or proper on his part to gave notice to or convene any of the proposed allottees of the property and hear them on this issue. Whether a building is one to which the provisions of the Act are applicable or not is a matter which has to be decided by the District Magistrate after hearing the landlord. It is a matter between the landlord and the government. An application for allotment merely confers on the applicant a right to be considered for allotment of a building to which the provisions of the Act are applicable, and he has no rights qua any property until the District Magistrate comes to the conclusion that the building is one which he can deal with by way of allotment
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Bhawani Cotton Mills Ltd Vs. State Of Punjab & Anr | or non-imposition of tax, on the other. These observations, also, in our opinion, effectively provide an answer to the stand taken by the State, in this case, that S. 12 of the Act provides an adequate relief, by way of refund, even if tax is collected at an earlier stage.23. Having due regard to the various matters mentioned above, we are satisfied that the decision of the High Court, upholding the orders of assessment passed by the Officer, in question, cannot be sustained.24. We have already indicted that there is one other point, arising for decision, in Civil Appeals Nos. 2387 and 2388 of 1966. That relates to the validity of the Notification, issued by the State Government, under S. 5 of the Act, on September 26, 1961. The assessment periods, covered by these two appeals, relate to 1960-61 and 1961-62. At the material time, the definition of the expression purchase, as contained in S. 2 (ff), has been already referred to by us. The definition of the word purchase was first introduced in the Act, by Punjab Act VII of 1958. According to that definition, it was as follows :"Purchase, with all its grammatical or cognate expressions, means the acquisition of goods other than sugarcane, food-grains, and pulses for use in the manufacture of goods for sale, for cash or deferred payment or other valuable consideration, otherwise than under a mortgage, hypothecation, charge or pledge."By Punjab Act XIII of 1959, the words other than sugarcane, food-grains and pulses, were omitted. Then there was a further amendment, by Punjab Act XXIV of 1959 and, after the said amendments, Cl. (ff) stood as follows:"Purchase, with all its grammatical or cognate expressions, means the acquisition of goods specified in Sch. C for use in the manufacture of goods for sale, for cash or deferred payment or other valuable consideration, otherwise than under a mortgage, hypothecation, charge or pledge."25. This definition was again amended by Punjab Act XVIII of 1960. The rate of tax, provided by the Act, was 4 per cent and, we have already indicated that the Central Act was enacted in 1956; and we have also adverted to the material provisions therein.26. We have adverted to the fact that, under S. 5 of the Act, the rate of tax that is to be livied, is to be contained in the notification that is to be issued under S. 5 (1). Accordingly, on April 19, 1958, the State Government issued, under S. 5 (1), as amended by the Punjab Act VII of 1958, a Notification regarding the rate of tax. In that Notification, the rate of tax on the purchase of goods, by a dealer, for use in the manufacture of goods for sale, was fixed at 2 naye paise in the rupee. Section 2 (ff) was, later on, amended in 1960, by Punjab Act XVIII of 1960, and the definition of purchase, as contained in this provision, has already been referred to, by us. The State Government issued a Notification, under S. 5 (1) of the Act, on September 26, 1961. Under this Notification, it was provided that the rate of tax on the purchase of goods specified in Sch. C, appended to the Act, would be 2 naye paise in the rupee.27. The contention that was taken by the appellant was that, notwithstanding the fact that the definition of the expression purchase, was changed with effect from April 1, 1960, the Notification fixing the rate of tax, under that amended definition, was not issued until September 26, 1961, and it was further urged that, in consequence, no assessment could be made of any tax on declared goods, mentioned in Sch. C, prior to September 26, 1961.28. It was not disputed by the State that no fresh notification was issued, after the expression purchase was amended in 1960, till September 26, 1961. But the State attempted to sustain the levy on the ground that the original notification, of April 19, 1958, would be valid even after the amended definition, in S. 2 (ff), as it now stands. It is open to the State to tax all purchases which come within the definition of S. 2 (ff) as it now stands, but the State, it is pointed out, must be considered to have chosen to levy tax only if the purchases have been made for use in the manufacture of goods for sale. Alternatively, it was also pointed out that the notification, issued in 1958, must be considered to have validity, even after the amendment, by virtue of S. 22 of the Punjab General Clauses Act. We are not increased by these contentions, advanced on behalf of the State.29. S. 22 of the Punjab General Clauses Act has no application whatsoever, to these cases. Apart from the fact that there is no question of the 1958 Act being repealed or re-enacted, it is also clear that the definition of the expression, under S. 2 (ff), as it stood in 1958, on the basis of which the notification of 1958 was issued, is quite inconsistent with amended definition of the expression purchase, in S. a (ff), in 1960. The High Court has sustained the levy of tax under the original notification of 1958, on the basis of S. 22 of the Punjab General Clauses Act, which, in our opinion, does not assist the State. It is not open to the State to urge that it is entitled, in the matter of levying tax, on transactions by way of purchase, to tax only the category of purchases for use in the manufacture of goods for sale. Further, the State has not been able to satisfy US that there is any reasonable classification made, which will enable this Court to sustain the Notification inasmuch as no fresh notification had been issued, under S. 5 (1), till September 26, l961 the assessment for the years 1960-61 and 1961-62, on the basis of the Notification issued in 1958, cannot be sustained, on this additional ground also. | 1[ds]Therefore, the definition of the expression purchase, has reference to the goods specified to Schedule C. The expression turnover in S. 2 (i), will include the aggregate of the amounts of sales and purchases and parts of sales and purchases actually made by any dealer, during the given period. No doubt, certain deductions are also mentioned in the definition of that expression. In the appeals since we are concerned only with tax on purchases, it is not necessary far us to advert to the definition of sale in S. 2 (h), except to note that it excludes goods specified in Schedulethe returns that are being sent, the deader will have to include all purchases of cotton, effected him dining the quarter for which the return is sent. There is no indication, either in the Act or in the rules or the form prescribed a, whether the persons, from whom the appellant purchased cotton, have paid tax not. Section 15 of the Central Act is not restricted only to registered dealers. The will also be nothing to guide the appellant to know as to whether the goods, purchased by it, have been sold to it by its within the period mentioned in C1. (vi) of S. 5 (2) (a) of the Act. Under those circumstances, there is always a possibility, or ever a certainty, of more persons than one having paid tax or being made liable to pay tax in respect of the same goods at different stages That is quite opposed to the provisions of S. 15(a) of the Central At, Even otherwise, it is pointed out that if a person has purchased cotton and sells it after the period provided for in S. 5 (2) (a) (vi) , that party is liable to pay sales tax and would have also paid the same. Another purchaser from the said party will also be liable to pay tax, on the same commodity, if he sells the goods, after the period mentioned in Cl. (vi). That is, two persons are made liable for payment of tax, in respect of the same commodity. In other words, the purchases of the same item of declared goods, by the persons indicated above, are made liable for tax, there can be only one levy and collection of tax at one stage, either on sale or on purchase.We are not impressed with the contentions of the learned counsel for the State. A perusal of the judgment, under attack, shows that the learned Judges themselves were very much impressed by the various aspects presented before them, on behalf of the appellant In fact, the learned Judges observe that the various difficulties, pointed out by the petitioner, before them did exist in the actual working of the Act, but the view of the High Court was that S. 12 of the Act provided for obtaining a refund and, therefore, though the petitioner might have to deposit, initially, the tax in respect of the purchases, when the quarterly returns were being submitted, it was open to it to obtain refunds at the appropriateour opinion, there can be no legal liability for payment of tax accruing, until and unless the Act or the rules framed thereunder prescribe a single point for taxation. For the matter of that, even in the final return to be sent by a dealer, under the Act, the dealer will have to show. in the taxable turnover all purchases of cotton effected by him during the accounting year. We have already referred to the fact that, along with the returns, the tax payable on the basis of those returns will have to be paid. At that stage, the question naturally arises, as to whether there is anywhere in the Act or the rules any provision. by which the person sending the return, will be able to know that the tax in respect of the declared goods purchased by him, have already been paid by another dealer and that the value of the purchases, effected by him need not be shown in his return. He cannot take an off-hand chance in this matter, because there are very heavy penalties imposed on a dealer for failure to include, in the returns sent by him, any transactions in respect of which he is liable to pay tax. If that is the position at the end of a year, when the final return is sent the position becomes still worse when the quarterly returns, accompanied by payment of taxes, are to be sent during the course of the accounting yearin the matter of obtaining refunds, there can be no controversy, that the appellant will have to place, before the officer concerned, particulars of transactions connected with the commodity in question, and also the basis on which it claims the relief. It will be absolutely difficult, if not impossible, for persons like the appellant, to collect materials in this behalf, because, there is no provision contained either in the Act or the rules, on the basis of which it will be entitled to be supplied with all the material information relevant, for sustaining a request for refund. If the Central Act makes it mandatory that the tax: can be collected only at one stage, in our opinion, it is not enough for the State to say that a person, who is not liable to pay tax must, nevertheless, pay it in the first instance, and then claim refund at a later stage. We may state that the question as to how far a party can ask for refund without the order of assessment being set aside, by appropriate proceedings. is highly doubtful: because, at the time when the actual order of assessment is passed, in certain cases, it may not he possible for a party to say whether he is entitled to exemption or not, under sub-cl. (vi) of S. 5 (2) (a) of the Act. If a person is not liable for payment of tax at all, at any time, the collection of a tax from him, with a possible contingency of refund at a date stage, will not make the original levy valid because, if particular sales or purchases are exempt from taxation altogether they can never be taken into account at any stage for the purpose of calculating or arriving at the taxable turnover and for levying tax.Having due regard to the various matters mentioned above, we are satisfied that the decision of the High Court, upholding the orders of assessment passed by the Officer, in question, cannot be sustained.It was not disputed by the State that no fresh notification was issued, after the expression purchase was amended in 1960, till September 26, 1961. But the State attempted to sustain the levy on the ground that the original notification, of April 19, 1958, would be valid even after the amended definition, in S. 2 (ff), as it now stands. It is open to the State to tax all purchases which come within the definition of S. 2 (ff) as it now stands, but the State, it is pointed out, must be considered to have chosen to levy tax only if the purchases have been made for use in the manufacture of goods for sale. Alternatively, it was also pointed out that the notification, issued in 1958, must be considered to have validity, even after the amendment, by virtue of S. 22 of the Punjab General Clauses Act. We are not increased by these contentions, advanced on behalf of the State.29. S. 22 of the Punjab General Clauses Act has no application whatsoever, to these cases. Apart from the fact that there is no question of the 1958 Act being repealed or re-enacted, it is also clear that the definition of the expression, under S. 2 (ff), as it stood in 1958, on the basis of which the notification of 1958 was issued, is quite inconsistent with amended definition of the expression purchase, in S. a (ff), in 1960. The High Court has sustained the levy of tax under the original notification of 1958, on the basis of S. 22 of the Punjab General Clauses Act, which, in our opinion, does not assist the State. It is not open to the State to urge that it is entitled, in the matter of levying tax, on transactions by way of purchase, to tax only the category of purchases for use in the manufacture of goods for sale. Further, the State has not been able to satisfy US that there is any reasonable classification made, which will enable this Court to sustain the Notification inasmuch as no fresh notification had been issued, under S. 5 (1), till September 26, l961 the assessment for the years 1960-61 and 1961-62, on the basis of the Notification issued in 1958, cannot be sustained, on this additional ground also. | 1 | 7,449 | 1,687 | ### Instruction:
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or non-imposition of tax, on the other. These observations, also, in our opinion, effectively provide an answer to the stand taken by the State, in this case, that S. 12 of the Act provides an adequate relief, by way of refund, even if tax is collected at an earlier stage.23. Having due regard to the various matters mentioned above, we are satisfied that the decision of the High Court, upholding the orders of assessment passed by the Officer, in question, cannot be sustained.24. We have already indicted that there is one other point, arising for decision, in Civil Appeals Nos. 2387 and 2388 of 1966. That relates to the validity of the Notification, issued by the State Government, under S. 5 of the Act, on September 26, 1961. The assessment periods, covered by these two appeals, relate to 1960-61 and 1961-62. At the material time, the definition of the expression purchase, as contained in S. 2 (ff), has been already referred to by us. The definition of the word purchase was first introduced in the Act, by Punjab Act VII of 1958. According to that definition, it was as follows :"Purchase, with all its grammatical or cognate expressions, means the acquisition of goods other than sugarcane, food-grains, and pulses for use in the manufacture of goods for sale, for cash or deferred payment or other valuable consideration, otherwise than under a mortgage, hypothecation, charge or pledge."By Punjab Act XIII of 1959, the words other than sugarcane, food-grains and pulses, were omitted. Then there was a further amendment, by Punjab Act XXIV of 1959 and, after the said amendments, Cl. (ff) stood as follows:"Purchase, with all its grammatical or cognate expressions, means the acquisition of goods specified in Sch. C for use in the manufacture of goods for sale, for cash or deferred payment or other valuable consideration, otherwise than under a mortgage, hypothecation, charge or pledge."25. This definition was again amended by Punjab Act XVIII of 1960. The rate of tax, provided by the Act, was 4 per cent and, we have already indicated that the Central Act was enacted in 1956; and we have also adverted to the material provisions therein.26. We have adverted to the fact that, under S. 5 of the Act, the rate of tax that is to be livied, is to be contained in the notification that is to be issued under S. 5 (1). Accordingly, on April 19, 1958, the State Government issued, under S. 5 (1), as amended by the Punjab Act VII of 1958, a Notification regarding the rate of tax. In that Notification, the rate of tax on the purchase of goods, by a dealer, for use in the manufacture of goods for sale, was fixed at 2 naye paise in the rupee. Section 2 (ff) was, later on, amended in 1960, by Punjab Act XVIII of 1960, and the definition of purchase, as contained in this provision, has already been referred to, by us. The State Government issued a Notification, under S. 5 (1) of the Act, on September 26, 1961. Under this Notification, it was provided that the rate of tax on the purchase of goods specified in Sch. C, appended to the Act, would be 2 naye paise in the rupee.27. The contention that was taken by the appellant was that, notwithstanding the fact that the definition of the expression purchase, was changed with effect from April 1, 1960, the Notification fixing the rate of tax, under that amended definition, was not issued until September 26, 1961, and it was further urged that, in consequence, no assessment could be made of any tax on declared goods, mentioned in Sch. C, prior to September 26, 1961.28. It was not disputed by the State that no fresh notification was issued, after the expression purchase was amended in 1960, till September 26, 1961. But the State attempted to sustain the levy on the ground that the original notification, of April 19, 1958, would be valid even after the amended definition, in S. 2 (ff), as it now stands. It is open to the State to tax all purchases which come within the definition of S. 2 (ff) as it now stands, but the State, it is pointed out, must be considered to have chosen to levy tax only if the purchases have been made for use in the manufacture of goods for sale. Alternatively, it was also pointed out that the notification, issued in 1958, must be considered to have validity, even after the amendment, by virtue of S. 22 of the Punjab General Clauses Act. We are not increased by these contentions, advanced on behalf of the State.29. S. 22 of the Punjab General Clauses Act has no application whatsoever, to these cases. Apart from the fact that there is no question of the 1958 Act being repealed or re-enacted, it is also clear that the definition of the expression, under S. 2 (ff), as it stood in 1958, on the basis of which the notification of 1958 was issued, is quite inconsistent with amended definition of the expression purchase, in S. a (ff), in 1960. The High Court has sustained the levy of tax under the original notification of 1958, on the basis of S. 22 of the Punjab General Clauses Act, which, in our opinion, does not assist the State. It is not open to the State to urge that it is entitled, in the matter of levying tax, on transactions by way of purchase, to tax only the category of purchases for use in the manufacture of goods for sale. Further, the State has not been able to satisfy US that there is any reasonable classification made, which will enable this Court to sustain the Notification inasmuch as no fresh notification had been issued, under S. 5 (1), till September 26, l961 the assessment for the years 1960-61 and 1961-62, on the basis of the Notification issued in 1958, cannot be sustained, on this additional ground also.
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provided for obtaining a refund and, therefore, though the petitioner might have to deposit, initially, the tax in respect of the purchases, when the quarterly returns were being submitted, it was open to it to obtain refunds at the appropriateour opinion, there can be no legal liability for payment of tax accruing, until and unless the Act or the rules framed thereunder prescribe a single point for taxation. For the matter of that, even in the final return to be sent by a dealer, under the Act, the dealer will have to show. in the taxable turnover all purchases of cotton effected by him during the accounting year. We have already referred to the fact that, along with the returns, the tax payable on the basis of those returns will have to be paid. At that stage, the question naturally arises, as to whether there is anywhere in the Act or the rules any provision. by which the person sending the return, will be able to know that the tax in respect of the declared goods purchased by him, have already been paid by another dealer and that the value of the purchases, effected by him need not be shown in his return. He cannot take an off-hand chance in this matter, because there are very heavy penalties imposed on a dealer for failure to include, in the returns sent by him, any transactions in respect of which he is liable to pay tax. If that is the position at the end of a year, when the final return is sent the position becomes still worse when the quarterly returns, accompanied by payment of taxes, are to be sent during the course of the accounting yearin the matter of obtaining refunds, there can be no controversy, that the appellant will have to place, before the officer concerned, particulars of transactions connected with the commodity in question, and also the basis on which it claims the relief. It will be absolutely difficult, if not impossible, for persons like the appellant, to collect materials in this behalf, because, there is no provision contained either in the Act or the rules, on the basis of which it will be entitled to be supplied with all the material information relevant, for sustaining a request for refund. If the Central Act makes it mandatory that the tax: can be collected only at one stage, in our opinion, it is not enough for the State to say that a person, who is not liable to pay tax must, nevertheless, pay it in the first instance, and then claim refund at a later stage. We may state that the question as to how far a party can ask for refund without the order of assessment being set aside, by appropriate proceedings. is highly doubtful: because, at the time when the actual order of assessment is passed, in certain cases, it may not he possible for a party to say whether he is entitled to exemption or not, under sub-cl. (vi) of S. 5 (2) (a) of the Act. If a person is not liable for payment of tax at all, at any time, the collection of a tax from him, with a possible contingency of refund at a date stage, will not make the original levy valid because, if particular sales or purchases are exempt from taxation altogether they can never be taken into account at any stage for the purpose of calculating or arriving at the taxable turnover and for levying tax.Having due regard to the various matters mentioned above, we are satisfied that the decision of the High Court, upholding the orders of assessment passed by the Officer, in question, cannot be sustained.It was not disputed by the State that no fresh notification was issued, after the expression purchase was amended in 1960, till September 26, 1961. But the State attempted to sustain the levy on the ground that the original notification, of April 19, 1958, would be valid even after the amended definition, in S. 2 (ff), as it now stands. It is open to the State to tax all purchases which come within the definition of S. 2 (ff) as it now stands, but the State, it is pointed out, must be considered to have chosen to levy tax only if the purchases have been made for use in the manufacture of goods for sale. Alternatively, it was also pointed out that the notification, issued in 1958, must be considered to have validity, even after the amendment, by virtue of S. 22 of the Punjab General Clauses Act. We are not increased by these contentions, advanced on behalf of the State.29. S. 22 of the Punjab General Clauses Act has no application whatsoever, to these cases. Apart from the fact that there is no question of the 1958 Act being repealed or re-enacted, it is also clear that the definition of the expression, under S. 2 (ff), as it stood in 1958, on the basis of which the notification of 1958 was issued, is quite inconsistent with amended definition of the expression purchase, in S. a (ff), in 1960. The High Court has sustained the levy of tax under the original notification of 1958, on the basis of S. 22 of the Punjab General Clauses Act, which, in our opinion, does not assist the State. It is not open to the State to urge that it is entitled, in the matter of levying tax, on transactions by way of purchase, to tax only the category of purchases for use in the manufacture of goods for sale. Further, the State has not been able to satisfy US that there is any reasonable classification made, which will enable this Court to sustain the Notification inasmuch as no fresh notification had been issued, under S. 5 (1), till September 26, l961 the assessment for the years 1960-61 and 1961-62, on the basis of the Notification issued in 1958, cannot be sustained, on this additional ground also.
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SQN.LDR. (RETD). NAVTEJ SINGH Vs. UNION OF INDIA | HQ EAC on 01.12.2009. HQ EAC vide signal No. PS/471 dated 08.12.2009 informed that the officer had already proceeded on release from the IAF on medical grounds w.e.f. 18.11.2009. In the light of the release of the officer from the IAF already having occurred and the Appellant was no longer subject to the Air Force Act, 1950, the matter relating to his application for grant of ex-post facto sanction with Ms. Meenu Sangha, an Indian national holding Canadian immigration visa, did not merit being pursued further.?14. We heard learned counsel for the parties at length who took us through the relevant documents and record.15. The assertions made in the counter affidavit, as extracted hereinabove, indicate that though the application was made by the appellant for ex-post facto sanction for marriage, it was not considered since, in the meantime, the appellant was released from the Indian Air Force on medical grounds and as such was no longer subject to the Air Force Act, 1950.16. The facts on record indicate that:i) The appellant intended to marry Ms. Meenu Sangha daughter of Colonel Jagjeet Singh (Retd.) holding an Indian passport but working with Toronto Dominion Canadian Trust Bank with Canadian immigrant visa.ii) It is a common ground that in terms of the relevant policy, a serving officer would be required to obtain permission before any marriage with a foreign national could be contracted.iii) On 27.10.2008 the appellant applied to the Directorate seeking permission to marry.iv) According to the relevant policy document the marriage could not be contracted without requisite permission to marry and in case no communication was received from the Directorate for 120 days, there would be deemed consent and permission.v) The appellant without waiting for the express permission or the expiry of 120 days, did contract the marriage on 19.12.2008.vi) Any violation on part of the officer of the mandate the concerned policy could visit him with the possibility of departmental action including dismissal or removal from service.17. In the present case neither there was any action taken against the appellant for infraction of the mandatory requirement of the policy nor there was any express communication rejecting his request seeking permission. As a matter of fact, there was no communication at all within 120 days.18. After having contracted the marriage, the appellant also applied for ex-post facto permission for marriage. However, said application was not considered at all as, in the meantime, the appellant was released from Indian Air Force and ceased to be governed by the provisions of the Indian Air Force Act, as asserted in the counter affidavit.19. It is in this factual backdrop that the issue in question needs to be considered. The underlying idea behind the policy is that in case a person governed by the provisions of Indian Air Force Act, 1950 intends to contract marriage with a foreign national, requisite intimation in that behalf is required to be made and appropriate permission is also required to be obtained. As a part of the exercise, the foreign national with whom the marriage is to be contracted may be required to give up the original citizenship and acquire citizenship of India. If there be any infraction or violation of the mandate of the requirements, the concerned officer could be visited with penalty including dismissal or removal from service. The policy has well laid and designed procedure including the timelines and the time limit of 120 days within which the authorities are required to apply their mind and consider the application seeking permission. In case nothing is heard within 120 days, the policy incorporates the concept of deemed consent or permission. All these requirements are in respect of those governed by the Indian Air Force Act, 1950 that is to say the serving officials.20. In the present case, even if we are to proceed on the footing that the marriage was contracted without the permission and as such there was infraction on part of the appellant, no disciplinary action was initiated or taken against him nor was any express rejection of his request intimated to him at any stage. His initial application was dated 27.10.2008 and he was invalidated out of service with effect from 18.11.2009 on medical grounds and not for any infraction of aforesaid policy. As a matter of fact, the department did not respond for more than 120 days in the matter.21. In any event of the matter, what is relevant for the present purposes is the fact that the appellant is no longer in service with Indian Air Force and on the respondents? own showing he has ceased to be subject to Indian Air Force Act. During the course of hearing we asked the learned counsel for the respondents as to what advantages and benefits a retired service person including his family would be entitled to. We have been given to understand that the wife may in certain cases be entitled to pension, in the event of death of the officer and the family including the spouse would be entitled to benefits such as canteen facilities and membership of officers club and such other benefits. We further asked the learned counsel for the respondents that if an officer after his release or retirement wished to contract marriage with a foreign national was there any restriction or prohibition under any of the policy documents in force. The learned counsel could not lay his hands on any such policy or point out any such provision. The stand of the respondents thus is clear that the policy in question is aimed at regulating certain aspects while the officers are in service. If an officer after his release or retirement could, therefore, validly contract the marriage with a foreign national and the spouse would therefore be entitled to all the benefits including medical or hospital facilities or club membership or canteen facilities etc., it does not stand to reason why the appellant, at least after his release from the Indian Air Force, should be disentitled in that behalf. | 1[ds]15. The assertions made in the counter affidavit, as extracted hereinabove, indicate that though the application was made by the appellant foro sanction formarriage, it was not considered since, in the meantime, the appellant was released from the Indian Air Force on medical grounds and as such was no longer subject to the Air Force Act, 1950.In the present case neither there was any action taken against the appellant for infraction of the mandatory requirement of the policy nor there was any express communication rejecting his request seeking permission. As a matter of fact, there was no communication at all within 120 days.18. After having contracted the marriage, the appellant also applied forfacto permission for marriage. However, said application was not considered at all as, in the meantime, the appellant was released from Indian Air Force and ceased to be governed by the provisions of the Indian Air Force Act, as asserted in the counter affidavit.19. It is in this factual backdrop that the issue in question needs to be considered. The underlying idea behind the policy is that in case a person governed by the provisionsof Indian Air ForceAct, 1950 intends to contract marriage with a foreign national, requisite intimation in that behalf is required to be made and appropriate permission is also required to be obtained. As a part of the exercise, the foreign national with whom the marriage is to be contracted may be required to give up the original citizenship and acquire citizenship of India. If there be any infraction or violation of the mandate of the requirements, the concerned officer could be visited with penalty including dismissal or removal from service. The policy has well laid and designed procedure including the timelines and the time limit of 120 days within which the authorities are required to apply their mind and consider the application seeking permission. In case nothing is heard within 120 days, the policy incorporates the concept ofn of Indiadeemed consent or permission. All these requirements are in respect of those governed by the Indian Air Force Act, 1950 that is to say the serving officials.20. In the present case, even if we are to proceed on the footing that the marriage was contracted without the permission and as such there was infraction on part of the appellant, no disciplinary action was initiated or taken against him nor was any express rejection of his request intimated to him at any stage. His initial application was dated 27.10.2008 and he was invalidated out of service with effect from 18.11.2009 on medical grounds and not for any infraction of aforesaid policy. As a matter of fact, the department did not respond for more than 120 days in the matter.21. In any event of the matter, what is relevant for the present purposes is the fact that the appellant is no longer in service with Indian Air Force and on the respondents? own showing he has ceased to be subject to Indian Air Force Act. During the course of hearing we asked the learned counsel for the respondents as to what advantages and benefits a retired service person including his family would be entitled to. We have been given to understand that the wife may in certain cases be entitled to pension, in then of Indiaevent of death of the officer and the family including the spouse would be entitled to benefits such as canteen facilities and membership of officers club and such other benefits. We further asked the learned counsel for the respondents that if an officer after his release or retirement wished to contract marriage with a foreign national was there any restriction or prohibition under any of the policy documents in force. The learned counsel could not lay his hands on any such policy or point out any such provision. The stand of the respondents thus is clear that the policy in question is aimed at regulating certain aspects while the officers are in service. If an officer after his release or retirement could, therefore, validly contract the marriage with a foreign national and the spouse would therefore be entitled to all the benefits including medical or hospital facilities or club membership or canteen facilities etc., it does not stand to reason why the appellant, at least after his release from the Indian Air Force, should be disentitled in that behalf. | 1 | 3,123 | 782 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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HQ EAC on 01.12.2009. HQ EAC vide signal No. PS/471 dated 08.12.2009 informed that the officer had already proceeded on release from the IAF on medical grounds w.e.f. 18.11.2009. In the light of the release of the officer from the IAF already having occurred and the Appellant was no longer subject to the Air Force Act, 1950, the matter relating to his application for grant of ex-post facto sanction with Ms. Meenu Sangha, an Indian national holding Canadian immigration visa, did not merit being pursued further.?14. We heard learned counsel for the parties at length who took us through the relevant documents and record.15. The assertions made in the counter affidavit, as extracted hereinabove, indicate that though the application was made by the appellant for ex-post facto sanction for marriage, it was not considered since, in the meantime, the appellant was released from the Indian Air Force on medical grounds and as such was no longer subject to the Air Force Act, 1950.16. The facts on record indicate that:i) The appellant intended to marry Ms. Meenu Sangha daughter of Colonel Jagjeet Singh (Retd.) holding an Indian passport but working with Toronto Dominion Canadian Trust Bank with Canadian immigrant visa.ii) It is a common ground that in terms of the relevant policy, a serving officer would be required to obtain permission before any marriage with a foreign national could be contracted.iii) On 27.10.2008 the appellant applied to the Directorate seeking permission to marry.iv) According to the relevant policy document the marriage could not be contracted without requisite permission to marry and in case no communication was received from the Directorate for 120 days, there would be deemed consent and permission.v) The appellant without waiting for the express permission or the expiry of 120 days, did contract the marriage on 19.12.2008.vi) Any violation on part of the officer of the mandate the concerned policy could visit him with the possibility of departmental action including dismissal or removal from service.17. In the present case neither there was any action taken against the appellant for infraction of the mandatory requirement of the policy nor there was any express communication rejecting his request seeking permission. As a matter of fact, there was no communication at all within 120 days.18. After having contracted the marriage, the appellant also applied for ex-post facto permission for marriage. However, said application was not considered at all as, in the meantime, the appellant was released from Indian Air Force and ceased to be governed by the provisions of the Indian Air Force Act, as asserted in the counter affidavit.19. It is in this factual backdrop that the issue in question needs to be considered. The underlying idea behind the policy is that in case a person governed by the provisions of Indian Air Force Act, 1950 intends to contract marriage with a foreign national, requisite intimation in that behalf is required to be made and appropriate permission is also required to be obtained. As a part of the exercise, the foreign national with whom the marriage is to be contracted may be required to give up the original citizenship and acquire citizenship of India. If there be any infraction or violation of the mandate of the requirements, the concerned officer could be visited with penalty including dismissal or removal from service. The policy has well laid and designed procedure including the timelines and the time limit of 120 days within which the authorities are required to apply their mind and consider the application seeking permission. In case nothing is heard within 120 days, the policy incorporates the concept of deemed consent or permission. All these requirements are in respect of those governed by the Indian Air Force Act, 1950 that is to say the serving officials.20. In the present case, even if we are to proceed on the footing that the marriage was contracted without the permission and as such there was infraction on part of the appellant, no disciplinary action was initiated or taken against him nor was any express rejection of his request intimated to him at any stage. His initial application was dated 27.10.2008 and he was invalidated out of service with effect from 18.11.2009 on medical grounds and not for any infraction of aforesaid policy. As a matter of fact, the department did not respond for more than 120 days in the matter.21. In any event of the matter, what is relevant for the present purposes is the fact that the appellant is no longer in service with Indian Air Force and on the respondents? own showing he has ceased to be subject to Indian Air Force Act. During the course of hearing we asked the learned counsel for the respondents as to what advantages and benefits a retired service person including his family would be entitled to. We have been given to understand that the wife may in certain cases be entitled to pension, in the event of death of the officer and the family including the spouse would be entitled to benefits such as canteen facilities and membership of officers club and such other benefits. We further asked the learned counsel for the respondents that if an officer after his release or retirement wished to contract marriage with a foreign national was there any restriction or prohibition under any of the policy documents in force. The learned counsel could not lay his hands on any such policy or point out any such provision. The stand of the respondents thus is clear that the policy in question is aimed at regulating certain aspects while the officers are in service. If an officer after his release or retirement could, therefore, validly contract the marriage with a foreign national and the spouse would therefore be entitled to all the benefits including medical or hospital facilities or club membership or canteen facilities etc., it does not stand to reason why the appellant, at least after his release from the Indian Air Force, should be disentitled in that behalf.
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15. The assertions made in the counter affidavit, as extracted hereinabove, indicate that though the application was made by the appellant foro sanction formarriage, it was not considered since, in the meantime, the appellant was released from the Indian Air Force on medical grounds and as such was no longer subject to the Air Force Act, 1950.In the present case neither there was any action taken against the appellant for infraction of the mandatory requirement of the policy nor there was any express communication rejecting his request seeking permission. As a matter of fact, there was no communication at all within 120 days.18. After having contracted the marriage, the appellant also applied forfacto permission for marriage. However, said application was not considered at all as, in the meantime, the appellant was released from Indian Air Force and ceased to be governed by the provisions of the Indian Air Force Act, as asserted in the counter affidavit.19. It is in this factual backdrop that the issue in question needs to be considered. The underlying idea behind the policy is that in case a person governed by the provisionsof Indian Air ForceAct, 1950 intends to contract marriage with a foreign national, requisite intimation in that behalf is required to be made and appropriate permission is also required to be obtained. As a part of the exercise, the foreign national with whom the marriage is to be contracted may be required to give up the original citizenship and acquire citizenship of India. If there be any infraction or violation of the mandate of the requirements, the concerned officer could be visited with penalty including dismissal or removal from service. The policy has well laid and designed procedure including the timelines and the time limit of 120 days within which the authorities are required to apply their mind and consider the application seeking permission. In case nothing is heard within 120 days, the policy incorporates the concept ofn of Indiadeemed consent or permission. All these requirements are in respect of those governed by the Indian Air Force Act, 1950 that is to say the serving officials.20. In the present case, even if we are to proceed on the footing that the marriage was contracted without the permission and as such there was infraction on part of the appellant, no disciplinary action was initiated or taken against him nor was any express rejection of his request intimated to him at any stage. His initial application was dated 27.10.2008 and he was invalidated out of service with effect from 18.11.2009 on medical grounds and not for any infraction of aforesaid policy. As a matter of fact, the department did not respond for more than 120 days in the matter.21. In any event of the matter, what is relevant for the present purposes is the fact that the appellant is no longer in service with Indian Air Force and on the respondents? own showing he has ceased to be subject to Indian Air Force Act. During the course of hearing we asked the learned counsel for the respondents as to what advantages and benefits a retired service person including his family would be entitled to. We have been given to understand that the wife may in certain cases be entitled to pension, in then of Indiaevent of death of the officer and the family including the spouse would be entitled to benefits such as canteen facilities and membership of officers club and such other benefits. We further asked the learned counsel for the respondents that if an officer after his release or retirement wished to contract marriage with a foreign national was there any restriction or prohibition under any of the policy documents in force. The learned counsel could not lay his hands on any such policy or point out any such provision. The stand of the respondents thus is clear that the policy in question is aimed at regulating certain aspects while the officers are in service. If an officer after his release or retirement could, therefore, validly contract the marriage with a foreign national and the spouse would therefore be entitled to all the benefits including medical or hospital facilities or club membership or canteen facilities etc., it does not stand to reason why the appellant, at least after his release from the Indian Air Force, should be disentitled in that behalf.
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Kurapati Venkata Mallayyaand Another Vs. Thondepu Ramaswami And Co. And Another | himself and Ex. A-31 which is a letter dated June 21, 1946 addressed by the representative of the Russian Government to the appellant-firm. The High Court has, however, lost sight of the fact that Mallayya had stated in his evidence that two contracts had been entered into by the appellant-firm with the Russian Government and that the rate of Re. 0-8-6 per pound was fixed with reference to the other contract towards which the tobacco supplied by the respondent-firm was to be tendered. This answer was elicited by the respondent-firm in cross-examination and we see no reason why it should not be accepted. The High Court has, however, made no reference whatsoever to this answer. Disagreeing with it we, therefore, hold that the respondent-firm has failed to establish that the parties had agreed upon the rate at which the tobacco was sold when the contract was entered into and that that rate was 8 annas per pound. 16. The question then is what would be the appropriate rate? The High Court has made a passing reference to the evidence of made a passing reference to the evidence of P. W. 1 Lolla Venkata Subrahmanyam, P. W.-2 Addagalla Rama Koteshwara Rao, and P. W. 3 Kathari Lingamurthi and observed : "Their evidence renders it probable that the price of tobacco sold by the plaintiff-firm to the defendant-firm might well have been fixed at 8 annas per pound." P. W. 1 Venkata Subrahmanyam is a dealer in tobacco. He produced three invoices Exs. A-1, A-2 and A-3. Each of them refers to tobacco leaf. What he has stated is that the rate of tobacco strips is 21/2 annas per pound higher than that for tobacco leaf. It seems to us unsafe to deduce the price of tobacco strips from the price of tobacco leaf. Apart from that the transactions referred to in the invoices are subsequent to that in suit. The witness has admitted that the price of tobacco varies from day to day and also that it varies from grade to grade. Bearing in mind these statements and also the circumstances that Exs. A-1 to A-3 do not show the grades of tobacco the evidence of this witness is of no assistance. The second witness, P. W. 2 Ramakoteswara Rao has merely produced one letter received from London Ex. A-4, credit note Ex. A-5 and two invoices Exs. A-6 and A-7. Apart from the fact that he has no personal knowledge of anything these documents would only show the price of tobacco which is sold to the merchants in London. It is an admitted fact that the tobacco which the Russians wanted to buy was cheap tobacco, that is, tobacco which was not acceptable by London traders. Therefore, neither the evidence of this witness nor the documents avail the respondent-firm anything. P. W. 3 Lingamurthy has produced two invoices both of which relate to transactions subsequent to the one in question before us and they do not disclose the grades of tobacco covered by the sales to which the invoices relate. Further, the invoices refer to the stock of 1945-46 whereas the tobacco sold by the respondent-firm to the appellant-firm was of 1944 or earlier stock. In the circumstances, this evidence has no relevance for the purpose of determining the price of the tobacco strips in question. P. W. 4 Ramaswamy in his evidence has referred to certain transaction entered into by him; but it is not clear from his evidence as to the age and grades of tobacco in those transactions. That evidence is thus vague and of little value. In the circumstances we hold that the evidence adduced on behalf of the respondent-firm is inadequate for establishing the value of the tobacco strips sold by it to the appellant-firm. 17. Just because of this suit need not fail. For, the appellant-firm has, by making an entry in its account books, admitted that the value of this tobacco is Rs. 5,639/3/-. The observations of the trial court on this point are as follows :"As per Exhibit B-5, the 1st defendant credited the suit firm with a sum of Rs 5,639-3-0 for the value of 112 bales of tobacco at Rs. 100 per candy of 500 pounds. In Exhibit B-10, a candy of 500 pounds was valued at Rs. 67-8-0. If the tobacco sold by the suit firm to the first defendant firm corresponded to the quality of tobacco in respect of which the invoices Exhibits. B-10 and B-12 were issued, there would have been no difficulty in the suit firm securing local customers and the stock of tobacco with the suit firm need not have remained idle from January, 1944 till June, 1946. Having regard to the fact that the tobacco which was sold by the suit firm to the 1st defendant firm was about 3 years old, the price of Rs. 100/- which was noted in Ex. B-5 appears to be a reasonable price." 18. We agree with what the trial Court has said that the price payable to the respondent-firm in respect of the tobacco strips would be Rs. 5,639/3/-. As regards interest, apart from the evidence of Ramaswamy P. W. 4 there is no other evidence on record to show that the parties had agreed that it should be payable in default of payment of the price within 11/2 months of delivery. As we have not accepted his evidence to the effect that the price has been settled when the transaction had been entered into, we cannot possibly accept his further statement that interest was agreed upon at that time. No custom or trade usage under which interest could be claimed has been established but under S. 61 of the Sale of Goods Act the respondent is entitled to interest at 6 per cent per annum from the date of the transaction to the date or suit. We further award interest to the respondent-firm at 6 per cent per annum from the date of suit till realisation. | 1[ds]10. It is no doubt true that in para 28 while dealing with the question of price the trial court has observed: "Much reliance cannot be placed on the rate mentioned in Exhibits A-13 and A-14 and the price has to be determined independently having regard to the fact that the price of tobacco depreciates gradually with its age." It will thus be seen that the trial court has not rejected these entries outright but only rejected them in so far as they were intended to establish the price agreed to be paid to the respondent firm11. All this shows that for accepting the entries in toto the High Court has given certain reasons and even though we may not agree with them it cannot be said that there is any unusual circumstance which would warrant our reviewing afresh the evidence on the point as to whether the transaction in question was a sale or notWe fail to see the significance of this because the appellant-firm admits that 112 bales of tobacco were actually received by it from the respondent-firm. It will thus be seen that there are no exceptional circumstances or unusual reasons which would induce us to re-examine the entire evidence on the point ourselves. We, therefore, decline to do soIn our opinion, the authority given to the Receiver "to collect the debts" is wide enough to empower the Receiver to take such legal steps as he thought necessary for collecting the debts including instituting a suit. The suit as originally instituted, was thus perfectly competent. The High Court has observed that even assuming that it would have been more appropriate for the Receiver to show in the cause title that it was the firm which was the real plaintiff and that the firm was suing through him it was merely a case of misdescription and that the plaint could be amended at any time for the purpose of showing the correct description of the plaintiff. We agree with the High Court that where there is a case of misdescription of parties it is open to the court to allow an amendment of the plaint at any time and the question of limitation would not arise in such a caseThe High Court has come to a conclusion different from that of the trial court, and therefore, we allowed the parties to take us through the evidence. It was said that once it is found that there was a contract of sale it must necessarily be held to be for a price and that price also must ordinarily be said to have been agreed upon when the contract was made. That may be so, but it would not be correct to say that it is an invariable rule that where a contract of sale has taken place a price must necessarily have been agreed upon15. In the case before us, no doubt, the respondent-firm has alleged that when the transaction was entered into, the parties fixed the price at 8 annas per pound. The trial court was not prepared to accept the testimony of P. W. 4 Ramaswamy, a partner of the firm, to the effect that the price was settled at 8 annas per pound when the contract was made. It also refused to place reliance upon Ex. A-14 which is an entry dated June 5, 1946 in the khata of the appellant-firmThese circumstances, in our opinion, detract from the value of this entry and we would, therefore, be justified in accepting the opinion of the trial court on the point which had the original document before it rather than of the High Court. We may also refer to the verification register Ex. A-28 which has already been set out earlier. The fact that the words "no price" occur therein clearly suggests that no price had been agreed upon at the time of the transaction. Our conclusion is fortified by the circumstance that the amount stated is Rs. 14,090 and not Rs. 14,098 and besides the figure of Rs. 14,090 is put in brackets. Had that been the price agreed upon it would not have been put in brackets. Another circumstance which makes the respondent-firms claim doubtful is that the institution of the suit was delayed till the last moment and even the notice of demand was made almost at the close of three years from the date of transaction. This suggests that no price had actually been agreed upon between the parties and the respondent-firm was in a quandary as to what amount should be claimed by it from the appellant-firm. Again, as has been rightly pointed out by trial court the tobacco was at least 21/2 years old when it was purchased by the appellant-firm and, therefore, its rate could not have been as high as 8 annas per pound which according to the evidence appear to be the rate for the tobacco of the year 1945. Further, the appellant-firm had agreed to supply 1,500 bales out of the 3,000 bales with respect to which it had entered into a contract with the Russian Government at 8 annas per pound, as is clear from Ex.B-16, which is the telegram dated May 15, 1946 sent by the representative of the Russian Government to the appellant-firm. So far as the remaining tobacco was concerned 1,250 bales were to be of tobacco leaf and only 250 bales were to be of tobacco strips. No doubt so far as these strips were concerned the rate was to be Re. 0-9-0 per pound. But as explained by the defendant in his evidence this was the price of first variety whereas the price of the second variety was 8 annas and the goods supplied by the respondent-firm were intended to be tendered for the contract with respect to the second variety. Normally no businessman would do business unless there is some profit in his transactions. If the appellant-firm had agreed to purchase the 112 bales in question at the rate of 8 annas per pound it would not only have not earned any profit by selling them to the Russian Government at the same rate but it would have incurred a loss because it had to incur the expenses for transporting the bales, first from the respondent-firms godown to its godown and then from there to Kakinada. It also had to incur labour charges as well as godown charges. In the circumstances it would not be reasonable to infer that the appellant-firm had agreed to purchase the tobacco at 8 annas per pound. It was, however, said that where a person has to tender a large quantity of a commodity against a contract within a particular time and was in difficulties in procuring the commodity in sufficient quantities he would rather forgo making any profit and would procure that commodity at an uneconomic price rather than commit a default and thus lay himself open to a claim for damages. We must bear in mind that the contract with the Russian Government was for delivery during the period "June-July", that is to say, the goods had to be tendered from the beginning of June till the end of July. The contract with the respondent-firm was entered into in the beginning of June. It is not shown that there was any dearth of tobacco strips of this particular variety in Guntur at that time nor even was a question put to Kurapati Venkata Mallyya in his cross-examination on the point. It would, therefore, be drawing a far-fetched inference if we were to say that the appellant-firm was prepared to do business with respondent-firm without earning any profit and in fact by incurring some loss. Finally we may mention that it was observed by the High Court that the Russians had agreed to buy tobacco at Re. 0-8-6 per pound and, therefore, the appellant-firm could still be making profit by purchasing tobacco from the respondent-firm at 8 annas per pound. In this connection the High Court has referred to the evidence of K. Venkata Mallayya himself and Ex. A-31 which is a letter dated June 21, 1946 addressed by the representative of the Russian Government to the appellant-firm. The High Court has, however, lost sight of the fact that Mallayya had stated in his evidence that two contracts had been entered into by the appellant-firm with the Russian Government and that the rate of Re. 0-8-6 per pound was fixed with reference to the other contract towards which the tobacco supplied by the respondent-firm was to be tendered. This answer was elicited by the respondent-firm in cross-examination and we see no reason why it should not be accepted. The High Court has, however, made no reference whatsoever to this answer. Disagreeing with it we, therefore, hold that the respondent-firm has failed to establish that the parties had agreed upon the rate at which the tobacco was sold when the contract was entered into and that that rate was 8 annas per poundApart from the fact that he has no personal knowledge of anything these documents would only show the price of tobacco which is sold to the merchants in London. It is an admitted fact that the tobacco which the Russians wanted to buy was cheap tobacco, that is, tobacco which was not acceptable by London traders. Therefore, neither the evidence of this witness nor the documents avail the respondent-firm anything. P. W. 3 Lingamurthy has produced two invoices both of which relate to transactions subsequent to the one in question before us and they do not disclose the grades of tobacco covered by the sales to which the invoices relate. Further, the invoices refer to the stock of 1945-46 whereas the tobacco sold by the respondent-firm to the appellant-firm was of 1944 or earlier stock. In the circumstances, this evidence has no relevance for the purpose of determining the price of the tobacco strips in question. P. W. 4 Ramaswamy in his evidence has referred to certain transaction entered into by him; but it is not clear from his evidence as to the age and grades of tobacco in those transactions. That evidence is thus vague and of little value. In the circumstances we hold that the evidence adduced on behalf of the respondent-firm is inadequate for establishing the value of the tobacco strips sold by it to the appellant-firm18. We agree with what the trial Court has said that the price payable to the respondent-firm in respect of the tobacco strips would be Rs. 5,639/3/-. As regards interest, apart from the evidence of Ramaswamy P. W. 4 there is no other evidence on record to show that the parties had agreed that it should be payable in default of payment of the price within 11/2 months of delivery. As we have not accepted his evidence to the effect that the price has been settled when the transaction had been entered into, we cannot possibly accept his further statement that interest was agreed upon at that time. No custom or trade usage under which interest could be claimed has been established but under S. 61 of the Sale of Goods Act the respondent is entitled to interest at 6 per cent per annum from the date of the transaction to the date or suit. We further award interest to the respondent-firm at 6 per cent per annum from the date of suit till realisation. | 1 | 6,468 | 2,027 | ### Instruction:
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himself and Ex. A-31 which is a letter dated June 21, 1946 addressed by the representative of the Russian Government to the appellant-firm. The High Court has, however, lost sight of the fact that Mallayya had stated in his evidence that two contracts had been entered into by the appellant-firm with the Russian Government and that the rate of Re. 0-8-6 per pound was fixed with reference to the other contract towards which the tobacco supplied by the respondent-firm was to be tendered. This answer was elicited by the respondent-firm in cross-examination and we see no reason why it should not be accepted. The High Court has, however, made no reference whatsoever to this answer. Disagreeing with it we, therefore, hold that the respondent-firm has failed to establish that the parties had agreed upon the rate at which the tobacco was sold when the contract was entered into and that that rate was 8 annas per pound. 16. The question then is what would be the appropriate rate? The High Court has made a passing reference to the evidence of made a passing reference to the evidence of P. W. 1 Lolla Venkata Subrahmanyam, P. W.-2 Addagalla Rama Koteshwara Rao, and P. W. 3 Kathari Lingamurthi and observed : "Their evidence renders it probable that the price of tobacco sold by the plaintiff-firm to the defendant-firm might well have been fixed at 8 annas per pound." P. W. 1 Venkata Subrahmanyam is a dealer in tobacco. He produced three invoices Exs. A-1, A-2 and A-3. Each of them refers to tobacco leaf. What he has stated is that the rate of tobacco strips is 21/2 annas per pound higher than that for tobacco leaf. It seems to us unsafe to deduce the price of tobacco strips from the price of tobacco leaf. Apart from that the transactions referred to in the invoices are subsequent to that in suit. The witness has admitted that the price of tobacco varies from day to day and also that it varies from grade to grade. Bearing in mind these statements and also the circumstances that Exs. A-1 to A-3 do not show the grades of tobacco the evidence of this witness is of no assistance. The second witness, P. W. 2 Ramakoteswara Rao has merely produced one letter received from London Ex. A-4, credit note Ex. A-5 and two invoices Exs. A-6 and A-7. Apart from the fact that he has no personal knowledge of anything these documents would only show the price of tobacco which is sold to the merchants in London. It is an admitted fact that the tobacco which the Russians wanted to buy was cheap tobacco, that is, tobacco which was not acceptable by London traders. Therefore, neither the evidence of this witness nor the documents avail the respondent-firm anything. P. W. 3 Lingamurthy has produced two invoices both of which relate to transactions subsequent to the one in question before us and they do not disclose the grades of tobacco covered by the sales to which the invoices relate. Further, the invoices refer to the stock of 1945-46 whereas the tobacco sold by the respondent-firm to the appellant-firm was of 1944 or earlier stock. In the circumstances, this evidence has no relevance for the purpose of determining the price of the tobacco strips in question. P. W. 4 Ramaswamy in his evidence has referred to certain transaction entered into by him; but it is not clear from his evidence as to the age and grades of tobacco in those transactions. That evidence is thus vague and of little value. In the circumstances we hold that the evidence adduced on behalf of the respondent-firm is inadequate for establishing the value of the tobacco strips sold by it to the appellant-firm. 17. Just because of this suit need not fail. For, the appellant-firm has, by making an entry in its account books, admitted that the value of this tobacco is Rs. 5,639/3/-. The observations of the trial court on this point are as follows :"As per Exhibit B-5, the 1st defendant credited the suit firm with a sum of Rs 5,639-3-0 for the value of 112 bales of tobacco at Rs. 100 per candy of 500 pounds. In Exhibit B-10, a candy of 500 pounds was valued at Rs. 67-8-0. If the tobacco sold by the suit firm to the first defendant firm corresponded to the quality of tobacco in respect of which the invoices Exhibits. B-10 and B-12 were issued, there would have been no difficulty in the suit firm securing local customers and the stock of tobacco with the suit firm need not have remained idle from January, 1944 till June, 1946. Having regard to the fact that the tobacco which was sold by the suit firm to the 1st defendant firm was about 3 years old, the price of Rs. 100/- which was noted in Ex. B-5 appears to be a reasonable price." 18. We agree with what the trial Court has said that the price payable to the respondent-firm in respect of the tobacco strips would be Rs. 5,639/3/-. As regards interest, apart from the evidence of Ramaswamy P. W. 4 there is no other evidence on record to show that the parties had agreed that it should be payable in default of payment of the price within 11/2 months of delivery. As we have not accepted his evidence to the effect that the price has been settled when the transaction had been entered into, we cannot possibly accept his further statement that interest was agreed upon at that time. No custom or trade usage under which interest could be claimed has been established but under S. 61 of the Sale of Goods Act the respondent is entitled to interest at 6 per cent per annum from the date of the transaction to the date or suit. We further award interest to the respondent-firm at 6 per cent per annum from the date of suit till realisation.
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be of tobacco strips. No doubt so far as these strips were concerned the rate was to be Re. 0-9-0 per pound. But as explained by the defendant in his evidence this was the price of first variety whereas the price of the second variety was 8 annas and the goods supplied by the respondent-firm were intended to be tendered for the contract with respect to the second variety. Normally no businessman would do business unless there is some profit in his transactions. If the appellant-firm had agreed to purchase the 112 bales in question at the rate of 8 annas per pound it would not only have not earned any profit by selling them to the Russian Government at the same rate but it would have incurred a loss because it had to incur the expenses for transporting the bales, first from the respondent-firms godown to its godown and then from there to Kakinada. It also had to incur labour charges as well as godown charges. In the circumstances it would not be reasonable to infer that the appellant-firm had agreed to purchase the tobacco at 8 annas per pound. It was, however, said that where a person has to tender a large quantity of a commodity against a contract within a particular time and was in difficulties in procuring the commodity in sufficient quantities he would rather forgo making any profit and would procure that commodity at an uneconomic price rather than commit a default and thus lay himself open to a claim for damages. We must bear in mind that the contract with the Russian Government was for delivery during the period "June-July", that is to say, the goods had to be tendered from the beginning of June till the end of July. The contract with the respondent-firm was entered into in the beginning of June. It is not shown that there was any dearth of tobacco strips of this particular variety in Guntur at that time nor even was a question put to Kurapati Venkata Mallyya in his cross-examination on the point. It would, therefore, be drawing a far-fetched inference if we were to say that the appellant-firm was prepared to do business with respondent-firm without earning any profit and in fact by incurring some loss. Finally we may mention that it was observed by the High Court that the Russians had agreed to buy tobacco at Re. 0-8-6 per pound and, therefore, the appellant-firm could still be making profit by purchasing tobacco from the respondent-firm at 8 annas per pound. In this connection the High Court has referred to the evidence of K. Venkata Mallayya himself and Ex. A-31 which is a letter dated June 21, 1946 addressed by the representative of the Russian Government to the appellant-firm. The High Court has, however, lost sight of the fact that Mallayya had stated in his evidence that two contracts had been entered into by the appellant-firm with the Russian Government and that the rate of Re. 0-8-6 per pound was fixed with reference to the other contract towards which the tobacco supplied by the respondent-firm was to be tendered. This answer was elicited by the respondent-firm in cross-examination and we see no reason why it should not be accepted. The High Court has, however, made no reference whatsoever to this answer. Disagreeing with it we, therefore, hold that the respondent-firm has failed to establish that the parties had agreed upon the rate at which the tobacco was sold when the contract was entered into and that that rate was 8 annas per poundApart from the fact that he has no personal knowledge of anything these documents would only show the price of tobacco which is sold to the merchants in London. It is an admitted fact that the tobacco which the Russians wanted to buy was cheap tobacco, that is, tobacco which was not acceptable by London traders. Therefore, neither the evidence of this witness nor the documents avail the respondent-firm anything. P. W. 3 Lingamurthy has produced two invoices both of which relate to transactions subsequent to the one in question before us and they do not disclose the grades of tobacco covered by the sales to which the invoices relate. Further, the invoices refer to the stock of 1945-46 whereas the tobacco sold by the respondent-firm to the appellant-firm was of 1944 or earlier stock. In the circumstances, this evidence has no relevance for the purpose of determining the price of the tobacco strips in question. P. W. 4 Ramaswamy in his evidence has referred to certain transaction entered into by him; but it is not clear from his evidence as to the age and grades of tobacco in those transactions. That evidence is thus vague and of little value. In the circumstances we hold that the evidence adduced on behalf of the respondent-firm is inadequate for establishing the value of the tobacco strips sold by it to the appellant-firm18. We agree with what the trial Court has said that the price payable to the respondent-firm in respect of the tobacco strips would be Rs. 5,639/3/-. As regards interest, apart from the evidence of Ramaswamy P. W. 4 there is no other evidence on record to show that the parties had agreed that it should be payable in default of payment of the price within 11/2 months of delivery. As we have not accepted his evidence to the effect that the price has been settled when the transaction had been entered into, we cannot possibly accept his further statement that interest was agreed upon at that time. No custom or trade usage under which interest could be claimed has been established but under S. 61 of the Sale of Goods Act the respondent is entitled to interest at 6 per cent per annum from the date of the transaction to the date or suit. We further award interest to the respondent-firm at 6 per cent per annum from the date of suit till realisation.
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R & B Falcon (A) Pty Ltd Vs. Commissioner Of Income Tax | the place of work or from the place of work to the place of residence would not attract the exemption provision. The Assessing Authority, therefore, must, in each case, would have a right to scrutinize the claim. CBDT has the requisite jurisdiction to interpret the provisions of Income-tax Act. The interpretation of CBDT being in the realm of executive construction, should ordinarily be held to be binding, save and except where it violates any provisions of law or is contrary to any judgment rendered by the courts. The reason for giving effect to such executive construction is not only same as contemporaneous which would come within the purview of the maxim temporania caste pesto, even in certain situation a representation made by an authority like Minister presenting the Bill before the Parliament may also be found bound thereby. 23. Rules of executive construction in a situation of this nature may also be applied. Where a representation is made by the maker of legislation at the time of introduction of the Bill or construction thereupon is put by the executive upon its coming into force, the same carries a great weight. 24. In this regard, we may refer to the decision of the House of Lords in the matter of R.V. National Asylum Support Service [(2002) 1 W.L.R.2956] and its interpretation of the decision in Pepper v. Hart [(1993) A.C. 593]. on the question of executive estoppel. In the former decision, Lord Steyn stated:- "If exceptionally there is found in the Explanatory Notes a clear assurance by the executive to Parliament about the meaning of a clause, or the circumstances in which a power will or will not be used, that assurance may in principle be admitted against the executive in proceedings in which the executive places a contrary contention before a court." 25. A similar interpretation was rendered by Lord Hope of Craighead in Wilson v. First County Trust Ltd., [2004] 1 A.C. 816, wherein it was stated:- "As I understand it [Pepper v. Hart], it recognized a limited exception to the general rule that resort to Hansard was inadmissible. Its purpose is to prevent the Executive seeking to place a meaning on words used in legislation which is different from that which ministers attributed to whose words when promoting the legislation in Parliament" For a detailed analysis of the rule of executive estoppel useful reference may be to the article authored by Francis Bennion entitled "Executive Estoppel: Pepper v. Hart revisited", published in Public Law, Spring 2007, pg. 1 which throws a new light on the subject matter.26. We may notice a decision of this Court in Sedco Forex International Drill. Inc. & Ors. v. Commissioner of Income Tax, Dehradun & Anr. [(2005) 12 SCC 717] , the question which arose therein was as to the salary paid to the employees of UK National Services for field breaks outside India would be subjected to tax under Section 9(1)(ii) and explanation appended thereto as inserted in 1983 w.e.f 1.4.1979. Appellant therein entered into agreements which are executed in the United Kingdom with each of the said employees who were residents of the said country. This Court, upon noticing the explanation appended to Section 9(1)(ii), as regards its retrospective operation, held: "16. The departmental understanding of the effect of the 1999 Amendment even if it were assumed not to bind the respondents under Section 119 of the Act, nevertheless affords a reasonable construction of it, and there is no reason why we should not adopt it.17. As was affirmed by this Court in Goslino Mario a cardinal principle of the tax law is that the law to be applied is that which is in force in the relevant assessment year unless otherwise provided expressly or by necessary implication. (See also Reliance Jute and Industries Ltd. v. CIT) An Explanation to a statutory provision may fulfil the purpose of clearing up an ambiguity in the main provision or an Explanation can add to and widen the scope of the main section. If it is in its nature clarificatory then the Explanation must be read into the main provision with effect from the time that the main provision came into force. But if it changes the law it is not presumed to be retrospective, irrespective of the fact that the phrases used are "it is declared" or "for the removal of doubts"." 27. It was categorically held that as the explanation sought to give an artificial meaning to "earned in India" and brings about a change effectively in the existing law, it should not be held to have any retrospective operation. Section 115WB does not contain such a provision. It must, therefore, be given its natural meaning. It would, therefore, be difficult to accept the contention of the learned Solicitor General that the employees must be based in India.28. However, it appears that the contention that such expenditure should be paid on a regular basis or what would be the effect of the words employees journey did not fall for consideration of AAR. What, therefore, is relevant would be the nature of expenses. The question as to whether the nature of a travelling expenditure incurred by the appellant would attract the benefits sought to be granted by the statute did not and could not fall for consideration of the AAR. Its opinion was sought for only on one issue. It necessarily had to confine itself to that one and no other. No material in this behalf was brought on record by the parties. Whether the payments were made to them on a regular basis or whether the expenditures incurred which strictly come within the purview of Section 115WB or not must, therefore, be answered having regard to the materials placed on records. If any question arises as to whether the agreement entered into by and between the appellant and the employees concerned would attract, in given cases, the liability under FBT benefit tax would have, thus, to be determined by the assessing authority. | 1[ds]For a detailed analysis of the rule of executive estoppel useful reference may be to the article authored by Francis Bennion entitled "Executive Estoppel: Pepper v. Hart revisited", published in Public Law, Spring 2007, pg. 1 which throws a new light on the subject matter.26. We may notice a decision of this Court in Sedco Forex International Drill. Inc. & Ors. v. Commissioner of Income Tax, Dehradun & Anr. [(2005) 12 SCC 717] , the question which arose therein was as to the salary paid to the employees of UK National Services for field breaks outside India would be subjected to tax under Section 9(1)(ii) and explanation appended thereto as inserted in 1983 w.e.f 1.4.1979. Appellant therein entered into agreements which are executed in the United Kingdom with each of the said employees who were residents of the said country. This Court, upon noticing the explanation appended to Section 9(1)(ii), as regards its retrospective operation,The departmental understanding of the effect of the 1999 Amendment even if it were assumed not to bind the respondents under Section 119 of the Act, nevertheless affords a reasonable construction of it, and there is no reason why we should not adopt it.17. As was affirmed by this Court in Goslino Mario a cardinal principle of the tax law is that the law to be applied is that which is in force in the relevant assessment year unless otherwise provided expressly or by necessary implication. (See also Reliance Jute and Industries Ltd. v. CIT) An Explanation to a statutory provision may fulfil the purpose of clearing up an ambiguity in the main provision or an Explanation can add to and widen the scope of the main section. If it is in its nature clarificatory then the Explanation must be read into the main provision with effect from the time that the main provision came into force. But if it changes the law it is not presumed to be retrospective, irrespective of the fact that the phrases used are "it is declared" or "for the removal of doubts".It was categorically held that as the explanation sought to give an artificial meaning to "earned in India" and brings about a change effectively in the existing law, it should not be held to have any retrospective operation. Section 115WB does not contain such a provision. It must, therefore, be given its natural meaning. It would, therefore, be difficult to accept the contention of the learned Solicitor General that the employees must be based in India.28. However, it appears that the contention that such expenditure should be paid on a regular basis or what would be the effect of the words employees journey did not fall for consideration of AAR. What, therefore, is relevant would be the nature of expenses. The question as to whether the nature of a travelling expenditure incurred by the appellant would attract the benefits sought to be granted by the statute did not and could not fall for consideration of the AAR. Its opinion was sought for only on one issue. It necessarily had to confine itself to that one and no other. No material in this behalf was brought on record by the parties. Whether the payments were made to them on a regular basis or whether the expenditures incurred which strictly come within the purview of Section 115WB or not must, therefore, be answered having regard to the materials placed on records. If any question arises as to whether the agreement entered into by and between the appellant and the employees concerned would attract, in given cases, the liability under FBT benefit tax would have, thus, to be determined by the assessing authority.CBDT categorically states in answer to question number 7 that(2) provides for an expansive definition. Does it mean that(2) is merely an extension of(1) or it is an independent provision? If(2) is merely an extension of(1), Mr. Ganesh may be right but we must notice that Section 115WA provides for imposition of tax on expenditure incurred by the employer or providing its employees certain benefits. Those benefits which are directly provided are contained in(1). Some other benefits, however, which the employer provides to the employees by incurring any expenditure or making any payment for the purpose enumerated therein in the course of his business or profession, irrespective of the fact as to whether any such activity would be carried on a regular basis or not, e.g., entertainment would, by reason of the legal fiction created, also be deemed to have been provided by the employer for the purpose ofion (1) envisages any amount paid to the employee by way of consideration for employment, what would be the limits thereof are only enumerated in(2). We, therefore, are of the opinion that(1) and (2), having regard to the provisions of Section 115WA as also(3) of Section 115WB, must be held to be operating in differenthave noticed the factual matrix of the instant case. The employees concerned are experts in their field. They are necessarily residents of other country. They are brought to the Rig by providing air tickets for their coming from their place of residence to the Rig. The employer incurs the said expenditure as of necessity. It, therefore, clearly falls within the purview of the words consideration for employment. If fringe benefits are provided for consideration for employment, which is given or provided to the employee by way of an amenity, reimbursement or otherwise; clearly clause (a) of(1) shall be attracted. A statute, as is well known, must be read in its entirety. What would be the subject matter of tax is contained in(1) and (2).(3), therefore, provides for an exemption. There cannot be any doubt or dispute that the latter part of the contents of(3) must be given its logical meaning. What is sought to be excluded must be held to be included first. If the submission of learned Solicitor General is accepted, there would not be any provision for exclusion from payment of tax any amenity in the nature of free or subsidized transport.16. Thus, when the expenditure incurred by the employer so as to enable the employee to undertake a journey from his place of residence to the place of work or either reimbursement of the amount of journey or free tickets therefor are provided by him, the same, in our opinion, would come within the purview of the term by way of reimbursement or otherwise. The Advanced Law Lexicon defines "otherwise"other like means; contrarily; different from that to which it relates; in a different manner; in another way; in any other way; differently in other respects in different respects; in some other like capacity.We, therefore, are of the opinion that AAR was right in its opinion that the matters enumerated in(2) of Section 115WB are not covered by(3) thereof, and the amenity in the nature of free or subsidized transport is covered bye benefit tax being a tax on expenditure; the only concern of the revenue wherefor should be as to whether such expenditure has been made. Appellant has a permanent establishment in India. It paysin India. It carries on business in India. It has for the purpose of carrying out its business activities engaged persons from within India or outside India. If it makes any expenditure for bringing any employee from abroad, the same would also liable to be taken into consideration for the purpose of(1) of Section 115WB. | 1 | 5,812 | 1,437 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the place of work or from the place of work to the place of residence would not attract the exemption provision. The Assessing Authority, therefore, must, in each case, would have a right to scrutinize the claim. CBDT has the requisite jurisdiction to interpret the provisions of Income-tax Act. The interpretation of CBDT being in the realm of executive construction, should ordinarily be held to be binding, save and except where it violates any provisions of law or is contrary to any judgment rendered by the courts. The reason for giving effect to such executive construction is not only same as contemporaneous which would come within the purview of the maxim temporania caste pesto, even in certain situation a representation made by an authority like Minister presenting the Bill before the Parliament may also be found bound thereby. 23. Rules of executive construction in a situation of this nature may also be applied. Where a representation is made by the maker of legislation at the time of introduction of the Bill or construction thereupon is put by the executive upon its coming into force, the same carries a great weight. 24. In this regard, we may refer to the decision of the House of Lords in the matter of R.V. National Asylum Support Service [(2002) 1 W.L.R.2956] and its interpretation of the decision in Pepper v. Hart [(1993) A.C. 593]. on the question of executive estoppel. In the former decision, Lord Steyn stated:- "If exceptionally there is found in the Explanatory Notes a clear assurance by the executive to Parliament about the meaning of a clause, or the circumstances in which a power will or will not be used, that assurance may in principle be admitted against the executive in proceedings in which the executive places a contrary contention before a court." 25. A similar interpretation was rendered by Lord Hope of Craighead in Wilson v. First County Trust Ltd., [2004] 1 A.C. 816, wherein it was stated:- "As I understand it [Pepper v. Hart], it recognized a limited exception to the general rule that resort to Hansard was inadmissible. Its purpose is to prevent the Executive seeking to place a meaning on words used in legislation which is different from that which ministers attributed to whose words when promoting the legislation in Parliament" For a detailed analysis of the rule of executive estoppel useful reference may be to the article authored by Francis Bennion entitled "Executive Estoppel: Pepper v. Hart revisited", published in Public Law, Spring 2007, pg. 1 which throws a new light on the subject matter.26. We may notice a decision of this Court in Sedco Forex International Drill. Inc. & Ors. v. Commissioner of Income Tax, Dehradun & Anr. [(2005) 12 SCC 717] , the question which arose therein was as to the salary paid to the employees of UK National Services for field breaks outside India would be subjected to tax under Section 9(1)(ii) and explanation appended thereto as inserted in 1983 w.e.f 1.4.1979. Appellant therein entered into agreements which are executed in the United Kingdom with each of the said employees who were residents of the said country. This Court, upon noticing the explanation appended to Section 9(1)(ii), as regards its retrospective operation, held: "16. The departmental understanding of the effect of the 1999 Amendment even if it were assumed not to bind the respondents under Section 119 of the Act, nevertheless affords a reasonable construction of it, and there is no reason why we should not adopt it.17. As was affirmed by this Court in Goslino Mario a cardinal principle of the tax law is that the law to be applied is that which is in force in the relevant assessment year unless otherwise provided expressly or by necessary implication. (See also Reliance Jute and Industries Ltd. v. CIT) An Explanation to a statutory provision may fulfil the purpose of clearing up an ambiguity in the main provision or an Explanation can add to and widen the scope of the main section. If it is in its nature clarificatory then the Explanation must be read into the main provision with effect from the time that the main provision came into force. But if it changes the law it is not presumed to be retrospective, irrespective of the fact that the phrases used are "it is declared" or "for the removal of doubts"." 27. It was categorically held that as the explanation sought to give an artificial meaning to "earned in India" and brings about a change effectively in the existing law, it should not be held to have any retrospective operation. Section 115WB does not contain such a provision. It must, therefore, be given its natural meaning. It would, therefore, be difficult to accept the contention of the learned Solicitor General that the employees must be based in India.28. However, it appears that the contention that such expenditure should be paid on a regular basis or what would be the effect of the words employees journey did not fall for consideration of AAR. What, therefore, is relevant would be the nature of expenses. The question as to whether the nature of a travelling expenditure incurred by the appellant would attract the benefits sought to be granted by the statute did not and could not fall for consideration of the AAR. Its opinion was sought for only on one issue. It necessarily had to confine itself to that one and no other. No material in this behalf was brought on record by the parties. Whether the payments were made to them on a regular basis or whether the expenditures incurred which strictly come within the purview of Section 115WB or not must, therefore, be answered having regard to the materials placed on records. If any question arises as to whether the agreement entered into by and between the appellant and the employees concerned would attract, in given cases, the liability under FBT benefit tax would have, thus, to be determined by the assessing authority.
### Response:
1
### Explanation:
provided expressly or by necessary implication. (See also Reliance Jute and Industries Ltd. v. CIT) An Explanation to a statutory provision may fulfil the purpose of clearing up an ambiguity in the main provision or an Explanation can add to and widen the scope of the main section. If it is in its nature clarificatory then the Explanation must be read into the main provision with effect from the time that the main provision came into force. But if it changes the law it is not presumed to be retrospective, irrespective of the fact that the phrases used are "it is declared" or "for the removal of doubts".It was categorically held that as the explanation sought to give an artificial meaning to "earned in India" and brings about a change effectively in the existing law, it should not be held to have any retrospective operation. Section 115WB does not contain such a provision. It must, therefore, be given its natural meaning. It would, therefore, be difficult to accept the contention of the learned Solicitor General that the employees must be based in India.28. However, it appears that the contention that such expenditure should be paid on a regular basis or what would be the effect of the words employees journey did not fall for consideration of AAR. What, therefore, is relevant would be the nature of expenses. The question as to whether the nature of a travelling expenditure incurred by the appellant would attract the benefits sought to be granted by the statute did not and could not fall for consideration of the AAR. Its opinion was sought for only on one issue. It necessarily had to confine itself to that one and no other. No material in this behalf was brought on record by the parties. Whether the payments were made to them on a regular basis or whether the expenditures incurred which strictly come within the purview of Section 115WB or not must, therefore, be answered having regard to the materials placed on records. If any question arises as to whether the agreement entered into by and between the appellant and the employees concerned would attract, in given cases, the liability under FBT benefit tax would have, thus, to be determined by the assessing authority.CBDT categorically states in answer to question number 7 that(2) provides for an expansive definition. Does it mean that(2) is merely an extension of(1) or it is an independent provision? If(2) is merely an extension of(1), Mr. Ganesh may be right but we must notice that Section 115WA provides for imposition of tax on expenditure incurred by the employer or providing its employees certain benefits. Those benefits which are directly provided are contained in(1). Some other benefits, however, which the employer provides to the employees by incurring any expenditure or making any payment for the purpose enumerated therein in the course of his business or profession, irrespective of the fact as to whether any such activity would be carried on a regular basis or not, e.g., entertainment would, by reason of the legal fiction created, also be deemed to have been provided by the employer for the purpose ofion (1) envisages any amount paid to the employee by way of consideration for employment, what would be the limits thereof are only enumerated in(2). We, therefore, are of the opinion that(1) and (2), having regard to the provisions of Section 115WA as also(3) of Section 115WB, must be held to be operating in differenthave noticed the factual matrix of the instant case. The employees concerned are experts in their field. They are necessarily residents of other country. They are brought to the Rig by providing air tickets for their coming from their place of residence to the Rig. The employer incurs the said expenditure as of necessity. It, therefore, clearly falls within the purview of the words consideration for employment. If fringe benefits are provided for consideration for employment, which is given or provided to the employee by way of an amenity, reimbursement or otherwise; clearly clause (a) of(1) shall be attracted. A statute, as is well known, must be read in its entirety. What would be the subject matter of tax is contained in(1) and (2).(3), therefore, provides for an exemption. There cannot be any doubt or dispute that the latter part of the contents of(3) must be given its logical meaning. What is sought to be excluded must be held to be included first. If the submission of learned Solicitor General is accepted, there would not be any provision for exclusion from payment of tax any amenity in the nature of free or subsidized transport.16. Thus, when the expenditure incurred by the employer so as to enable the employee to undertake a journey from his place of residence to the place of work or either reimbursement of the amount of journey or free tickets therefor are provided by him, the same, in our opinion, would come within the purview of the term by way of reimbursement or otherwise. The Advanced Law Lexicon defines "otherwise"other like means; contrarily; different from that to which it relates; in a different manner; in another way; in any other way; differently in other respects in different respects; in some other like capacity.We, therefore, are of the opinion that AAR was right in its opinion that the matters enumerated in(2) of Section 115WB are not covered by(3) thereof, and the amenity in the nature of free or subsidized transport is covered bye benefit tax being a tax on expenditure; the only concern of the revenue wherefor should be as to whether such expenditure has been made. Appellant has a permanent establishment in India. It paysin India. It carries on business in India. It has for the purpose of carrying out its business activities engaged persons from within India or outside India. If it makes any expenditure for bringing any employee from abroad, the same would also liable to be taken into consideration for the purpose of(1) of Section 115WB.
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Dai-Ichi Karkaria Private Limited Vs. Union of India | of the petitioners that pursuant to the above Notification bearing No. 210/82 as amended and in view of the promises/representations/assurances made by the Government, petitioners entered into contracts with O. N. G. C. on September 9, 1986 for sale and supply of the above mentioned chemicals on the basis of duty free imports of the raw materials. For the import of the raw materials and for the manufacture of speciality chemicals to be supplied to the ONGC, the petitioner No. 1 company applied and the respondent No. 1 acting upon the said representation, issued import licences under the Duty Exemption Scheme. The petitioners thereafter imported raw materials from time to time. In the present case, we are concerned with the goods being imported during the period December 30, 1986 upto January 21, 1987 during which period the goods were cleared without payment of customs duty as shown in Exh. e to the petition. Similarly, statements showing raw materials imported prior to December 30, 1986 and stored in bond, imported material expected during the period February 1987 upto April 1987 and unutilised value of special imprest licences are annexed as Exhs. f, g and h respectively to the petition. The above exhibits are relevant in view of the fact that on January 27, 1987 petitioners filed three bills of entry for home consumption in respect of 92. 2 Mts. of the raw materials stored in bonded warehouses. The respondents refused clearance of the said goods unless the petitioners paid duty at 25% ad valorem in view of above Notification No. 513/86 dated December 30, 1986 which is one of the impugned Notifications. Being aggrieved by the above impugned notifications all dated December 30, 1986 by which full exemption with regard to payment of customs duty came to be partly withdrawn, the present writ petition has been filed.( 2 ) SHRI Bharucha, learned counsel appearing on behalf of the petitioners, firstly contended that in the present case goods were imported and stored in bond even prior to December 30, 1986. This was pursuant to Notification No. 210/82 under which full exemption was granted from payment of customs duty for five years i. e. upto September 10, 1987 and since the goods were fully exempted when they entered into territorial waters of India prior to September 30, 1986, there was no question of the Company being asked to pay customs duty at 25% ad valorem. Shri bharucha contended that the rate at which imports are chargeable to customs duty ought to be determined under Section 15 of the Customs Act provided such imports are not wholly exempted when the goods entered into territorial waters of India. Shri Bharucha contended that in the present case the goods entered into territorial waters of India prior to December 30, 1986 and therefore the impugned Notification Nos. 517/86 and 513/86, dated December 30, 1986 were not applicable. Shri Bharucha placed heavy reliance in support of his contention on the judgment of the full Bench of this Court in the case of Apart Pvt. Ltd. and Others v. Union of India and others reported in 1985 (22) E. L. T. 644 (Bom. ). We do not find any merit in the said contention. As stated hereinabove, full exemption was granted to the petitioners vide Notification No. 210/82 which was valid for five years. The subsequent Notification No. 517/86 expressly amended the Notification No. 210/82 and by reason of the said amendment, supply to O. N. G. C. has been expressly removed from the Notification No. 210/82. This Notification No. 517/86 is thereafter followed by Notification No. 513/86, also dated December 30, 1986 which indicates that in respect of goods supplied to O. N. G. C. , the importer is required to pay duty at the rate of 25% ad valorem and full exemption with regard to additional duty under Section 3 of the customs Act. In the above circumstances, the facts of the present case indicate that the ratio of the judgment of the Full Bench of this Court in the case of Apart Pvt. Ltd. and Others v. Union of India and Others (supra) has no application to the facts of the present case. We also do not find any merit in the contention of Shri Bharucha that in the present case exemption was project based and not goods related exemption as generally is the case. In this connection, it was contended that the Notification No. 210/82 granted exemption to import of raw material used for manufacture of chemicals to be supplied to projects financed by IBRD/ida or to goods to be supplied to O. N. G. C. /oil India etc. The public interest was to encourage manufacture of goods indigenously for effecting supplies to essential Indian enterprises as a part of the Scheme which was Project Based. In this connection, it was contended that since exemption under the said notification No. 210/82 was a part of Project Based Exemption Scheme, the judgment of the supreme Court in Kasinka Trading v. Union of India reported in 1994 (74) E. L. T. 782 (SC) = A. I. R. 1995 S. C. 874 has no application. We do not find any merit in the above contention. In kasinka Trading (supra) the Apex Court has laid down that the power to exempt flows from section 25 of the Act, that just as the Notification is issued granting exemption in public interest, it can also be modified or withdrawn in public interest. In our view, whether exemption is project based or specific goods related does not make any difference. Moreover, by impugned notification No. 517/86, exemption to goods supplied to O. N. G. C. stood revoked by amendment of Notification No. 210/82. In the circumstances, the judgment of the Supreme Court in Kasinka trading (supra) would squarely apply. In the present case, Notification No. 210/82 was issued in public interest. By impugned Notifications, it is modified in public interest. Therefore, the judgment in Kasinka (supra) is applicable to the present case. | 0[ds]We do not find any merit in the said contention. As stated hereinabove, full exemption was granted to the petitioners vide Notification No. 210/82 which was valid for five years. The subsequent Notification No. 517/86 expressly amended the Notification No. 210/82 and by reason of the said amendment, supply to O. N. G. C. has been expressly removed from the Notification No. 210/82. This Notification No. 517/86 is thereafter followed by Notification No. 513/86, also dated December 30, 1986 which indicates that in respect of goods supplied to O. N. G. C. , the importer is required to pay duty at the rate of 25% ad valorem and full exemption with regard to additional duty under Section 3 of the customs Act. In the above circumstances, the facts of the present case indicate that the ratio of the judgment of the Full Bench of this Court in the case of Apart Pvt. Ltd. and Others v. Union of India and Others (supra) has no application to the facts of the present case. We also do not find any merit in the contention of Shri Bharucha that in the present case exemption was project based and not goods related exemption as generally is thedo not find any merit in the above contention. In kasinka Trading (supra) the Apex Court has laid down that the power to exempt flows from section 25 of the Act, that just as the Notification is issued granting exemption in public interest, it can also be modified or withdrawn in public interest. In our view, whether exemption is project based or specific goods related does not make any difference. Moreover, by impugned notification No. 517/86, exemption to goods supplied to O. N. G. C. stood revoked by amendment of Notification No. 210/82. In the circumstances, the judgment of the Supreme Court in Kasinka trading (supra) would squarely apply. In the present case, Notification No. 210/82 was issued in public interest. By impugned Notifications, it is modified in public interest. Therefore, the judgment in Kasinka (supra) is applicable to the present case. | 0 | 1,628 | 394 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
of the petitioners that pursuant to the above Notification bearing No. 210/82 as amended and in view of the promises/representations/assurances made by the Government, petitioners entered into contracts with O. N. G. C. on September 9, 1986 for sale and supply of the above mentioned chemicals on the basis of duty free imports of the raw materials. For the import of the raw materials and for the manufacture of speciality chemicals to be supplied to the ONGC, the petitioner No. 1 company applied and the respondent No. 1 acting upon the said representation, issued import licences under the Duty Exemption Scheme. The petitioners thereafter imported raw materials from time to time. In the present case, we are concerned with the goods being imported during the period December 30, 1986 upto January 21, 1987 during which period the goods were cleared without payment of customs duty as shown in Exh. e to the petition. Similarly, statements showing raw materials imported prior to December 30, 1986 and stored in bond, imported material expected during the period February 1987 upto April 1987 and unutilised value of special imprest licences are annexed as Exhs. f, g and h respectively to the petition. The above exhibits are relevant in view of the fact that on January 27, 1987 petitioners filed three bills of entry for home consumption in respect of 92. 2 Mts. of the raw materials stored in bonded warehouses. The respondents refused clearance of the said goods unless the petitioners paid duty at 25% ad valorem in view of above Notification No. 513/86 dated December 30, 1986 which is one of the impugned Notifications. Being aggrieved by the above impugned notifications all dated December 30, 1986 by which full exemption with regard to payment of customs duty came to be partly withdrawn, the present writ petition has been filed.( 2 ) SHRI Bharucha, learned counsel appearing on behalf of the petitioners, firstly contended that in the present case goods were imported and stored in bond even prior to December 30, 1986. This was pursuant to Notification No. 210/82 under which full exemption was granted from payment of customs duty for five years i. e. upto September 10, 1987 and since the goods were fully exempted when they entered into territorial waters of India prior to September 30, 1986, there was no question of the Company being asked to pay customs duty at 25% ad valorem. Shri bharucha contended that the rate at which imports are chargeable to customs duty ought to be determined under Section 15 of the Customs Act provided such imports are not wholly exempted when the goods entered into territorial waters of India. Shri Bharucha contended that in the present case the goods entered into territorial waters of India prior to December 30, 1986 and therefore the impugned Notification Nos. 517/86 and 513/86, dated December 30, 1986 were not applicable. Shri Bharucha placed heavy reliance in support of his contention on the judgment of the full Bench of this Court in the case of Apart Pvt. Ltd. and Others v. Union of India and others reported in 1985 (22) E. L. T. 644 (Bom. ). We do not find any merit in the said contention. As stated hereinabove, full exemption was granted to the petitioners vide Notification No. 210/82 which was valid for five years. The subsequent Notification No. 517/86 expressly amended the Notification No. 210/82 and by reason of the said amendment, supply to O. N. G. C. has been expressly removed from the Notification No. 210/82. This Notification No. 517/86 is thereafter followed by Notification No. 513/86, also dated December 30, 1986 which indicates that in respect of goods supplied to O. N. G. C. , the importer is required to pay duty at the rate of 25% ad valorem and full exemption with regard to additional duty under Section 3 of the customs Act. In the above circumstances, the facts of the present case indicate that the ratio of the judgment of the Full Bench of this Court in the case of Apart Pvt. Ltd. and Others v. Union of India and Others (supra) has no application to the facts of the present case. We also do not find any merit in the contention of Shri Bharucha that in the present case exemption was project based and not goods related exemption as generally is the case. In this connection, it was contended that the Notification No. 210/82 granted exemption to import of raw material used for manufacture of chemicals to be supplied to projects financed by IBRD/ida or to goods to be supplied to O. N. G. C. /oil India etc. The public interest was to encourage manufacture of goods indigenously for effecting supplies to essential Indian enterprises as a part of the Scheme which was Project Based. In this connection, it was contended that since exemption under the said notification No. 210/82 was a part of Project Based Exemption Scheme, the judgment of the supreme Court in Kasinka Trading v. Union of India reported in 1994 (74) E. L. T. 782 (SC) = A. I. R. 1995 S. C. 874 has no application. We do not find any merit in the above contention. In kasinka Trading (supra) the Apex Court has laid down that the power to exempt flows from section 25 of the Act, that just as the Notification is issued granting exemption in public interest, it can also be modified or withdrawn in public interest. In our view, whether exemption is project based or specific goods related does not make any difference. Moreover, by impugned notification No. 517/86, exemption to goods supplied to O. N. G. C. stood revoked by amendment of Notification No. 210/82. In the circumstances, the judgment of the Supreme Court in Kasinka trading (supra) would squarely apply. In the present case, Notification No. 210/82 was issued in public interest. By impugned Notifications, it is modified in public interest. Therefore, the judgment in Kasinka (supra) is applicable to the present case.
### Response:
0
### Explanation:
We do not find any merit in the said contention. As stated hereinabove, full exemption was granted to the petitioners vide Notification No. 210/82 which was valid for five years. The subsequent Notification No. 517/86 expressly amended the Notification No. 210/82 and by reason of the said amendment, supply to O. N. G. C. has been expressly removed from the Notification No. 210/82. This Notification No. 517/86 is thereafter followed by Notification No. 513/86, also dated December 30, 1986 which indicates that in respect of goods supplied to O. N. G. C. , the importer is required to pay duty at the rate of 25% ad valorem and full exemption with regard to additional duty under Section 3 of the customs Act. In the above circumstances, the facts of the present case indicate that the ratio of the judgment of the Full Bench of this Court in the case of Apart Pvt. Ltd. and Others v. Union of India and Others (supra) has no application to the facts of the present case. We also do not find any merit in the contention of Shri Bharucha that in the present case exemption was project based and not goods related exemption as generally is thedo not find any merit in the above contention. In kasinka Trading (supra) the Apex Court has laid down that the power to exempt flows from section 25 of the Act, that just as the Notification is issued granting exemption in public interest, it can also be modified or withdrawn in public interest. In our view, whether exemption is project based or specific goods related does not make any difference. Moreover, by impugned notification No. 517/86, exemption to goods supplied to O. N. G. C. stood revoked by amendment of Notification No. 210/82. In the circumstances, the judgment of the Supreme Court in Kasinka trading (supra) would squarely apply. In the present case, Notification No. 210/82 was issued in public interest. By impugned Notifications, it is modified in public interest. Therefore, the judgment in Kasinka (supra) is applicable to the present case.
|
Natasha Singh Vs. Cbi (State) | Anr., AIR 1958 SC 376 ; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors., AIR 2004 SC 3114; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367 ; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), (2007) 2 SCC 258 ; Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136 ; and Sudevanand v. State through C.B.I., (2012) 3 SCC 387 ) 16. The instant case is required to be examined in light of the aforesaid settled legal propositions. The relevant part of the chargesheet dated 19.7.2001 states, that the insurance claim filed by the appellant was inflated and that therefore, the collusion of a Public Servant in this respect attracted the provisions of Sections 420, 467, 468, 471 and 13 of the Act 1988. The chargesheet further revealed that: Investigation has revealed that in order to obtain insurance claim, accused Rita Singh (A-1) in her capacity as Director, Mideast India Ltd. accused Natasha Singh (A-2) in her capacity as Director, approached IFCI and in view of the aforesaid necessity for obtaining NOC from Financial Institutions/Banks, Sh. S.S. Batra, Company Secretary, MIL vide letter dated 1.3.96 requested IFCI, New Delhi for issuing a NOC for releasing a sum of Rs.3.75 crores as interim on account payment. Sh. B.B. Huria the then Chief General Manager, IFCI recorded a note on this letter for issuing NOC subject to payment of over dues aggregating to Rs. 58 lacs. Despite the fact that there were over dues to the tune of Rs.58,92,197/- against Mideast (India) Limited, accused Y.V.Luthra dishonestly and fraudulently issued NOC dated 1.3.96 for release of Rs.3.75 crores by the insurance Company in respect of property at B-12/A Phase II, Noida and he on 2.3.96 recorded a note in the office copy of the letter dated 1.3.96 that NOC was issued as there were no over dues as confirmed from Accounts Department. This NOC dated 1.3.96 was handed over to the representative of Mideast (India) Limited, which was presented to Delhi Regional Office of UIICL and on the strength of the said false NOC the Insurance Companys Head Office at Chennai released a payment of Rs.3.60 crores to Mideast (India) Limited vide cheque No.454431 dated 8.3.96 which was credited to the account of Mideast (India) Limited. A sum of Rs.15 lacs was retained out of the approved amount of Rs.3.75 crores towards payment to PNB Capital Finance. 17. The Trial Court, while entertaining the application filed under Section 311 Cr.P.C., had asked the appellant to provide a brief summary of the nature of evidence that would be provided by the defence witnesses mentioned in the application, and in keeping with this, the appellant had furnished an application stating that the appellant wished to examine one Shri B.B. Sharma who was one of the panchnama witnesses, and who the prosecution had neither listed nor examined in court. Therefore, the appellant wished to examine him in defence. The second person was Shri S.S. Batra, Company Secretary of the appellant, as he was the best person to provide greater details of the company of which the appellant is the Director. The third witness was a hand-writing expert, and it was necessary for the defence to examine him regarding the correctness of the signatures of the appellant and others, particularly with respect to the signatures of the appellant. 18. Undoubtedly, an application filed under Section 311 Cr.P.C. must be allowed if fresh evidence is being produced to facilitate a just decision, however, in the instant case, the learned Trial Court prejudged the evidence of the witness sought to be examined by the appellant, and thereby cause grave and material prejudice to the appellant as regards her defence, which tantamounts to a flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of Section 311 Cr.P.C. By doing so, the Trial Court reached the conclusion that the production of such evidence by the defence was not essential to facilitate a just decision of the case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate a just and proper decision of the case. The examination of the hand-writing expert may therefore be necessary to rebut the evidence of Rabi Lal Thapa (PW.40), and a request made for his examination ought not to have been rejected on the sole ground that the opinion of the hand-writing expert would not be conclusive. In such a situation, the only issue that ought to have been considered by the courts below, is whether the evidence proposed to be adduced was relevant or not. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought on record. Mr. B.B. Sharma, thus, may be in a position to depose with respect to whether the documents alleged to have been found, or to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating a just decision of the case. 19. The High Court has simply quoted relevant paragraphs from the judgment of the Trial Court and has approved the same without giving proper reasons, merely observing that the additional evidence sought to be brought on record was not essential for the purpose of arriving at a just decision. Furthermore, the same is not a case where if the application filed by the appellant had been allowed, the process would have taken much time. In fact, disallowing the said application, has caused delay. No prejudice would have been caused to the prosecution, if the defence had been permitted to examine said three witnesses. 20. | 1[ds]The Trial Court, while entertaining the application filed under Section 311 Cr.P.C., had asked the appellant to provide a brief summary of the nature of evidence that would be provided by the defence witnesses mentioned in the application, and in keeping with this, the appellant had furnished an application stating that the appellant wished to examine one Shri B.B. Sharma who was one of the panchnama witnesses, and who the prosecution had neither listed nor examined in court. Therefore, the appellant wished to examine him in defence. The second person was Shri S.S. Batra, Company Secretary of the appellant, as he was the best person to provide greater details of the company of which the appellant is the Director. The third witness was a hand-writing expert, and it was necessary for the defence to examine him regarding the correctness of the signatures of the appellant and others, particularly with respect to the signatures of the appellant18. Undoubtedly, an application filed under Section 311 Cr.P.C. must be allowed if fresh evidence is being produced to facilitate a just decision, however, in the instant case, the learned Trial Court prejudged the evidence of the witness sought to be examined by the appellant, and thereby cause grave and material prejudice to the appellant as regards her defence, which tantamounts to a flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of Section 311 Cr.P.C. By doing so, the Trial Court reached the conclusion that the production of such evidence by the defence was not essential to facilitate a just decision of the case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate a just and proper decision of the case. The examination of the hand-writing expert may therefore be necessary to rebut the evidence of Rabi Lal Thapa (PW.40), and a request made for his examination ought not to have been rejected on the sole ground that the opinion of the hand-writing expert would not be conclusive. In such a situation, the only issue that ought to have been considered by the courts below, is whether the evidence proposed to be adduced was relevant or not. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought on record. Mr. B.B. Sharma, thus, may be in a position to depose with respect to whether the documents alleged to have been found, or to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating a just decision of the case19. The High Court has simply quoted relevant paragraphs from the judgment of the Trial Court and has approved the same without giving proper reasons, merely observing that the additional evidence sought to be brought on record was not essential for the purpose of arriving at a just decision. Furthermore, the same is not a case where if the application filed by the appellant had been allowed, the process would have taken much time. In fact, disallowing the said application, has caused delay. No prejudice would have been caused to the prosecution, if the defence had been permitted to examine said three witnesses. | 1 | 3,947 | 650 | ### 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:
Anr., AIR 1958 SC 376 ; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors., AIR 2004 SC 3114; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367 ; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), (2007) 2 SCC 258 ; Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136 ; and Sudevanand v. State through C.B.I., (2012) 3 SCC 387 ) 16. The instant case is required to be examined in light of the aforesaid settled legal propositions. The relevant part of the chargesheet dated 19.7.2001 states, that the insurance claim filed by the appellant was inflated and that therefore, the collusion of a Public Servant in this respect attracted the provisions of Sections 420, 467, 468, 471 and 13 of the Act 1988. The chargesheet further revealed that: Investigation has revealed that in order to obtain insurance claim, accused Rita Singh (A-1) in her capacity as Director, Mideast India Ltd. accused Natasha Singh (A-2) in her capacity as Director, approached IFCI and in view of the aforesaid necessity for obtaining NOC from Financial Institutions/Banks, Sh. S.S. Batra, Company Secretary, MIL vide letter dated 1.3.96 requested IFCI, New Delhi for issuing a NOC for releasing a sum of Rs.3.75 crores as interim on account payment. Sh. B.B. Huria the then Chief General Manager, IFCI recorded a note on this letter for issuing NOC subject to payment of over dues aggregating to Rs. 58 lacs. Despite the fact that there were over dues to the tune of Rs.58,92,197/- against Mideast (India) Limited, accused Y.V.Luthra dishonestly and fraudulently issued NOC dated 1.3.96 for release of Rs.3.75 crores by the insurance Company in respect of property at B-12/A Phase II, Noida and he on 2.3.96 recorded a note in the office copy of the letter dated 1.3.96 that NOC was issued as there were no over dues as confirmed from Accounts Department. This NOC dated 1.3.96 was handed over to the representative of Mideast (India) Limited, which was presented to Delhi Regional Office of UIICL and on the strength of the said false NOC the Insurance Companys Head Office at Chennai released a payment of Rs.3.60 crores to Mideast (India) Limited vide cheque No.454431 dated 8.3.96 which was credited to the account of Mideast (India) Limited. A sum of Rs.15 lacs was retained out of the approved amount of Rs.3.75 crores towards payment to PNB Capital Finance. 17. The Trial Court, while entertaining the application filed under Section 311 Cr.P.C., had asked the appellant to provide a brief summary of the nature of evidence that would be provided by the defence witnesses mentioned in the application, and in keeping with this, the appellant had furnished an application stating that the appellant wished to examine one Shri B.B. Sharma who was one of the panchnama witnesses, and who the prosecution had neither listed nor examined in court. Therefore, the appellant wished to examine him in defence. The second person was Shri S.S. Batra, Company Secretary of the appellant, as he was the best person to provide greater details of the company of which the appellant is the Director. The third witness was a hand-writing expert, and it was necessary for the defence to examine him regarding the correctness of the signatures of the appellant and others, particularly with respect to the signatures of the appellant. 18. Undoubtedly, an application filed under Section 311 Cr.P.C. must be allowed if fresh evidence is being produced to facilitate a just decision, however, in the instant case, the learned Trial Court prejudged the evidence of the witness sought to be examined by the appellant, and thereby cause grave and material prejudice to the appellant as regards her defence, which tantamounts to a flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of Section 311 Cr.P.C. By doing so, the Trial Court reached the conclusion that the production of such evidence by the defence was not essential to facilitate a just decision of the case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate a just and proper decision of the case. The examination of the hand-writing expert may therefore be necessary to rebut the evidence of Rabi Lal Thapa (PW.40), and a request made for his examination ought not to have been rejected on the sole ground that the opinion of the hand-writing expert would not be conclusive. In such a situation, the only issue that ought to have been considered by the courts below, is whether the evidence proposed to be adduced was relevant or not. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought on record. Mr. B.B. Sharma, thus, may be in a position to depose with respect to whether the documents alleged to have been found, or to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating a just decision of the case. 19. The High Court has simply quoted relevant paragraphs from the judgment of the Trial Court and has approved the same without giving proper reasons, merely observing that the additional evidence sought to be brought on record was not essential for the purpose of arriving at a just decision. Furthermore, the same is not a case where if the application filed by the appellant had been allowed, the process would have taken much time. In fact, disallowing the said application, has caused delay. No prejudice would have been caused to the prosecution, if the defence had been permitted to examine said three witnesses. 20.
### Response:
1
### Explanation:
The Trial Court, while entertaining the application filed under Section 311 Cr.P.C., had asked the appellant to provide a brief summary of the nature of evidence that would be provided by the defence witnesses mentioned in the application, and in keeping with this, the appellant had furnished an application stating that the appellant wished to examine one Shri B.B. Sharma who was one of the panchnama witnesses, and who the prosecution had neither listed nor examined in court. Therefore, the appellant wished to examine him in defence. The second person was Shri S.S. Batra, Company Secretary of the appellant, as he was the best person to provide greater details of the company of which the appellant is the Director. The third witness was a hand-writing expert, and it was necessary for the defence to examine him regarding the correctness of the signatures of the appellant and others, particularly with respect to the signatures of the appellant18. Undoubtedly, an application filed under Section 311 Cr.P.C. must be allowed if fresh evidence is being produced to facilitate a just decision, however, in the instant case, the learned Trial Court prejudged the evidence of the witness sought to be examined by the appellant, and thereby cause grave and material prejudice to the appellant as regards her defence, which tantamounts to a flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of Section 311 Cr.P.C. By doing so, the Trial Court reached the conclusion that the production of such evidence by the defence was not essential to facilitate a just decision of the case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate a just and proper decision of the case. The examination of the hand-writing expert may therefore be necessary to rebut the evidence of Rabi Lal Thapa (PW.40), and a request made for his examination ought not to have been rejected on the sole ground that the opinion of the hand-writing expert would not be conclusive. In such a situation, the only issue that ought to have been considered by the courts below, is whether the evidence proposed to be adduced was relevant or not. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought on record. Mr. B.B. Sharma, thus, may be in a position to depose with respect to whether the documents alleged to have been found, or to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating a just decision of the case19. The High Court has simply quoted relevant paragraphs from the judgment of the Trial Court and has approved the same without giving proper reasons, merely observing that the additional evidence sought to be brought on record was not essential for the purpose of arriving at a just decision. Furthermore, the same is not a case where if the application filed by the appellant had been allowed, the process would have taken much time. In fact, disallowing the said application, has caused delay. No prejudice would have been caused to the prosecution, if the defence had been permitted to examine said three witnesses.
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SOUTH EAST ASIA MARINE ENGINEERING AND CONSTRUCTIONS LTD. (SEAMEC LTD.) Vs. OIL INDIA LIMITED | per the old doctrine was moderated by the introduction of the law of restitution. Interestingly, Lord Shaw in Cantiare San Rocco SA (Shipbuilding Company) v. Clyde Shipbuilding and Engineering Co. Ltd., [1924] AC 226, had observed that English law of leaving the loss to where it fell unless the contract provided otherwise was, he said, appropriate only among tricksters, gamblers and thieves. The UK Parliament took notice of the aforesaid judgment and legislated Law Reform (Frustrated Contracts) Act, 1943. 23. In India, the Contract Act had already recognized the harsh consequences of such frustration to some extent and had provided for a limited mechanism to ameliorate the same under Section 65 of the Contract Act. Section 65 provides as under: 65. Obligation of person who has received advantage under void agreement, or contract that becomes void When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it. The aforesaid clause provides the basis of restitution for failure of basis. We are cognizant that the aforesaid provision addresses limited circumstances wherein an agreement is void ab initio or the contract becomes subsequently void. 24. Coming back to the case, the contract has explicitly recognized force majeure events in Clause 44.3 in the following manner: For purpose of this clause Force Majeure means an act of God, war, revolt, riots, strikes, bandh, fire, flood, sabotage, failure or destruction of roads, systems and acts and regulations of the Government of India and other clauses (but not due to employment problem of the contractor) beyond the reasonable control of the parties. Further, under Clause 22.23, the parties had agreed for a payment of force majeure rate to tide over any force majeure event, which is temporary in nature. 25. Having regards to the law discussed herein, we do not subscribe to either the reasons provided by the Arbitral Tribunal or the High Court. Although, the Arbitral Tribunal correctly held that a contract needs to be interpreted taking into consideration all the clauses of the contract, it failed to apply the same standard while interpreting Clause 23 of the Contract. 26. We also do not completely subscribe to the reasoning of the High Court holding that Clause 23 was inserted in furtherance of the doctrine of frustration. Rather, under Indian contract law, the effect of the doctrine of frustration is that it discharges all the parties from future obligations. In order to mitigate the harsh consequences of frustration and to uphold the sanctity of the contract, the parties with their commercial wisdom, chose to mitigate the risk under Clause 23 of the contract. 27. Our attention was drawn to Sumitomo Heavy Industries Limited v. Oil and Natural Gas Corporation Limited, (2010) 11 SCC 296 , where this Court interpreted an indemnity clause and found that an additional tax burden could be recovered under such clause. Based on an appreciation of the evidence, the Court ruled that additional tax burden could be recovered under the clause as such an interpretation was a plausible view that a reasonable person could take and accordingly sustained the award. However, we are of the opinion that the aforesaid case and ratio may not be applicable herein as the evidence on record does not suggest that the parties had agreed to a broad interpretation to the clause in question. 28. In this context, the interpretation of Clause 23 of the Contract by the Arbitral Tribunal, to provide a wide interpretation cannot be accepted, as the thumb rule of interpretation is that the document forming a written contract should be read as a whole and so far as possible as mutually explanatory. In the case at hand, this basic rule was ignored by the Tribunal while interpreting the clause. 29. The contract was entered into between the parties in furtherance of a tender issued by the Respondent herein. After considering the tender bids, the Appellant issued a Letter of Intent. In furtherance of the Letter of Intent, the contract (Contract No. CCO/FC/0040/95) was for drilling oil wells and auxiliary operations. It is important to note that the contract price was payable to the contractor for full and proper performance of its contractual obligations. Further, Clauses 14.7 and 14.11 of the Contract states that the rates, terms and conditions were to be in force until the completion or abandonment of the last well being drilled. 30. From the aforesaid discussion, it can be said that the contract was based on a fixed rate. The party, before entering the tender process, entered the contract after mitigating the risk of such an increase. If the purpose of the tender was to limit the risks of price variations, then the interpretation placed by the Arbitral Tribunal cannot be said to be possible one, as it would completely defeat the explicit wordings and purpose of the contract. There is no gainsaying that there will be price fluctuations which a prudent contractor would have taken into margin, while bidding in the tender. Such price fluctuations cannot be brought under Clause 23 unless specific language points to the inclusion. 31. The interpretation of the Arbitral Tribunal to expand the meaning of Clause 23 to include change in rate of HSD is not a possible interpretation of this contract, as the appellant did not introduce any evidence which proves the same. 32. The other contractual terms also suggest that the interpretation of the clause, as suggested by the Arbitral Tribunal, is perverse. For instance, Item 1 of List II (Consumables) of Exhibit C (Consolidated Statement of Equipment and Services Furnished by Contractor or Operator for the Onshore Rig Operation), indicates that fuel would be supplied by the contactor, at his expense. The existence of such a clause shows that the interpretation of the contract by the Arbitral Tribunal is not a possible interpretation of the contract. | 0[ds]12. It is a settled position that a Court can set aside the award only on the grounds as provided in the Arbitration Act as interpreted by the Courts13. It is also settled law that where two views are possible, the Court cannot interfere in the plausible view taken by the arbitrator supported by reasoning15. In the present case, respondent has argued that the view taken by the Arbitral Tribunal was not even a possible interpretation, therefore the award being unreasonable and unfair suffers from perversity. Hence, the respondent has pleaded that the award ought to be set aside.In this context, we may state that usually the Court is not required to examine the merits of the interpretation provided in the award by the arbitrator, if it comes to a conclusion that such an interpretation was reasonably possible25. Having regards to the law discussed herein, we do not subscribe to either the reasons provided by the Arbitral Tribunal or the High Court. Although, the Arbitral Tribunal correctly held that a contract needs to be interpreted taking into consideration all the clauses of the contract, it failed to apply the same standard while interpreting Clause 23 of the Contract26. We also do not completely subscribe to the reasoning of the High Court holding that Clause 23 was inserted in furtherance of the doctrine of frustration. Rather, under Indian contract law, the effect of the doctrine of frustration is that it discharges all the parties from future obligations. In order to mitigate the harsh consequences of frustration and to uphold the sanctity of the contract, the parties with their commercial wisdom, chose to mitigate the risk under Clause 23 of the contract27. Our attention was drawn to Sumitomo Heavy Industries Limited v. Oil and Natural Gas Corporation Limited, (2010) 11 SCC 296 , where this Court interpreted an indemnity clause and found that an additional tax burden could be recovered under such clause. Based on an appreciation of the evidence, the Court ruled that additional tax burden could be recovered under the clause as such an interpretation was a plausible view that a reasonable person could take and accordingly sustained the award. However, we are of the opinion that the aforesaid case and ratio may not be applicable herein as the evidence on record does not suggest that the parties had agreed to a broad interpretation to the clause in question28. In this context, the interpretation of Clause 23 of the Contract by the Arbitral Tribunal, to provide a wide interpretation cannot be accepted, as the thumb rule of interpretation is that the document forming a written contract should be read as a whole and so far as possible as mutually explanatory. In the case at hand, this basic rule was ignored by the Tribunal while interpreting the clause29. The contract was entered into between the parties in furtherance of a tender issued by the Respondent herein. After considering the tender bids, the Appellant issued a Letter of Intent. In furtherance of the Letter of Intent, the contract (Contract No. CCO/FC/0040/95) was for drilling oil wells and auxiliary operations. It is important to note that the contract price was payable to the contractor for full and proper performance of its contractual obligations. Further, Clauses 14.7 and 14.11 of the Contract states that the rates, terms and conditions were to be in force until the completion or abandonment of the last well being drilled30. From the aforesaid discussion, it can be said that the contract was based on a fixed rate. The party, before entering the tender process, entered the contract after mitigating the risk of such an increase. If the purpose of the tender was to limit the risks of price variations, then the interpretation placed by the Arbitral Tribunal cannot be said to be possible one, as it would completely defeat the explicit wordings and purpose of the contract. There is no gainsaying that there will be price fluctuations which a prudent contractor would have taken into margin, while bidding in the tender. Such price fluctuations cannot be brought under Clause 23 unless specific language points to the inclusion31. The interpretation of the Arbitral Tribunal to expand the meaning of Clause 23 to include change in rate of HSD is not a possible interpretation of this contract, as the appellant did not introduce any evidence which proves the same32. The other contractual terms also suggest that the interpretation of the clause, as suggested by the Arbitral Tribunal, is perverse. For instance, Item 1 of List II (Consumables) of Exhibit C (Consolidated Statement of Equipment and Services Furnished by Contractor or Operator for the Onshore Rig Operation), indicates that fuel would be supplied by the contactor, at his expense. The existence of such a clause shows that the interpretation of the contract by the Arbitral Tribunal is not a possible interpretation of the contract. | 0 | 4,699 | 894 | ### 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:
per the old doctrine was moderated by the introduction of the law of restitution. Interestingly, Lord Shaw in Cantiare San Rocco SA (Shipbuilding Company) v. Clyde Shipbuilding and Engineering Co. Ltd., [1924] AC 226, had observed that English law of leaving the loss to where it fell unless the contract provided otherwise was, he said, appropriate only among tricksters, gamblers and thieves. The UK Parliament took notice of the aforesaid judgment and legislated Law Reform (Frustrated Contracts) Act, 1943. 23. In India, the Contract Act had already recognized the harsh consequences of such frustration to some extent and had provided for a limited mechanism to ameliorate the same under Section 65 of the Contract Act. Section 65 provides as under: 65. Obligation of person who has received advantage under void agreement, or contract that becomes void When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it. The aforesaid clause provides the basis of restitution for failure of basis. We are cognizant that the aforesaid provision addresses limited circumstances wherein an agreement is void ab initio or the contract becomes subsequently void. 24. Coming back to the case, the contract has explicitly recognized force majeure events in Clause 44.3 in the following manner: For purpose of this clause Force Majeure means an act of God, war, revolt, riots, strikes, bandh, fire, flood, sabotage, failure or destruction of roads, systems and acts and regulations of the Government of India and other clauses (but not due to employment problem of the contractor) beyond the reasonable control of the parties. Further, under Clause 22.23, the parties had agreed for a payment of force majeure rate to tide over any force majeure event, which is temporary in nature. 25. Having regards to the law discussed herein, we do not subscribe to either the reasons provided by the Arbitral Tribunal or the High Court. Although, the Arbitral Tribunal correctly held that a contract needs to be interpreted taking into consideration all the clauses of the contract, it failed to apply the same standard while interpreting Clause 23 of the Contract. 26. We also do not completely subscribe to the reasoning of the High Court holding that Clause 23 was inserted in furtherance of the doctrine of frustration. Rather, under Indian contract law, the effect of the doctrine of frustration is that it discharges all the parties from future obligations. In order to mitigate the harsh consequences of frustration and to uphold the sanctity of the contract, the parties with their commercial wisdom, chose to mitigate the risk under Clause 23 of the contract. 27. Our attention was drawn to Sumitomo Heavy Industries Limited v. Oil and Natural Gas Corporation Limited, (2010) 11 SCC 296 , where this Court interpreted an indemnity clause and found that an additional tax burden could be recovered under such clause. Based on an appreciation of the evidence, the Court ruled that additional tax burden could be recovered under the clause as such an interpretation was a plausible view that a reasonable person could take and accordingly sustained the award. However, we are of the opinion that the aforesaid case and ratio may not be applicable herein as the evidence on record does not suggest that the parties had agreed to a broad interpretation to the clause in question. 28. In this context, the interpretation of Clause 23 of the Contract by the Arbitral Tribunal, to provide a wide interpretation cannot be accepted, as the thumb rule of interpretation is that the document forming a written contract should be read as a whole and so far as possible as mutually explanatory. In the case at hand, this basic rule was ignored by the Tribunal while interpreting the clause. 29. The contract was entered into between the parties in furtherance of a tender issued by the Respondent herein. After considering the tender bids, the Appellant issued a Letter of Intent. In furtherance of the Letter of Intent, the contract (Contract No. CCO/FC/0040/95) was for drilling oil wells and auxiliary operations. It is important to note that the contract price was payable to the contractor for full and proper performance of its contractual obligations. Further, Clauses 14.7 and 14.11 of the Contract states that the rates, terms and conditions were to be in force until the completion or abandonment of the last well being drilled. 30. From the aforesaid discussion, it can be said that the contract was based on a fixed rate. The party, before entering the tender process, entered the contract after mitigating the risk of such an increase. If the purpose of the tender was to limit the risks of price variations, then the interpretation placed by the Arbitral Tribunal cannot be said to be possible one, as it would completely defeat the explicit wordings and purpose of the contract. There is no gainsaying that there will be price fluctuations which a prudent contractor would have taken into margin, while bidding in the tender. Such price fluctuations cannot be brought under Clause 23 unless specific language points to the inclusion. 31. The interpretation of the Arbitral Tribunal to expand the meaning of Clause 23 to include change in rate of HSD is not a possible interpretation of this contract, as the appellant did not introduce any evidence which proves the same. 32. The other contractual terms also suggest that the interpretation of the clause, as suggested by the Arbitral Tribunal, is perverse. For instance, Item 1 of List II (Consumables) of Exhibit C (Consolidated Statement of Equipment and Services Furnished by Contractor or Operator for the Onshore Rig Operation), indicates that fuel would be supplied by the contactor, at his expense. The existence of such a clause shows that the interpretation of the contract by the Arbitral Tribunal is not a possible interpretation of the contract.
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12. It is a settled position that a Court can set aside the award only on the grounds as provided in the Arbitration Act as interpreted by the Courts13. It is also settled law that where two views are possible, the Court cannot interfere in the plausible view taken by the arbitrator supported by reasoning15. In the present case, respondent has argued that the view taken by the Arbitral Tribunal was not even a possible interpretation, therefore the award being unreasonable and unfair suffers from perversity. Hence, the respondent has pleaded that the award ought to be set aside.In this context, we may state that usually the Court is not required to examine the merits of the interpretation provided in the award by the arbitrator, if it comes to a conclusion that such an interpretation was reasonably possible25. Having regards to the law discussed herein, we do not subscribe to either the reasons provided by the Arbitral Tribunal or the High Court. Although, the Arbitral Tribunal correctly held that a contract needs to be interpreted taking into consideration all the clauses of the contract, it failed to apply the same standard while interpreting Clause 23 of the Contract26. We also do not completely subscribe to the reasoning of the High Court holding that Clause 23 was inserted in furtherance of the doctrine of frustration. Rather, under Indian contract law, the effect of the doctrine of frustration is that it discharges all the parties from future obligations. In order to mitigate the harsh consequences of frustration and to uphold the sanctity of the contract, the parties with their commercial wisdom, chose to mitigate the risk under Clause 23 of the contract27. Our attention was drawn to Sumitomo Heavy Industries Limited v. Oil and Natural Gas Corporation Limited, (2010) 11 SCC 296 , where this Court interpreted an indemnity clause and found that an additional tax burden could be recovered under such clause. Based on an appreciation of the evidence, the Court ruled that additional tax burden could be recovered under the clause as such an interpretation was a plausible view that a reasonable person could take and accordingly sustained the award. However, we are of the opinion that the aforesaid case and ratio may not be applicable herein as the evidence on record does not suggest that the parties had agreed to a broad interpretation to the clause in question28. In this context, the interpretation of Clause 23 of the Contract by the Arbitral Tribunal, to provide a wide interpretation cannot be accepted, as the thumb rule of interpretation is that the document forming a written contract should be read as a whole and so far as possible as mutually explanatory. In the case at hand, this basic rule was ignored by the Tribunal while interpreting the clause29. The contract was entered into between the parties in furtherance of a tender issued by the Respondent herein. After considering the tender bids, the Appellant issued a Letter of Intent. In furtherance of the Letter of Intent, the contract (Contract No. CCO/FC/0040/95) was for drilling oil wells and auxiliary operations. It is important to note that the contract price was payable to the contractor for full and proper performance of its contractual obligations. Further, Clauses 14.7 and 14.11 of the Contract states that the rates, terms and conditions were to be in force until the completion or abandonment of the last well being drilled30. From the aforesaid discussion, it can be said that the contract was based on a fixed rate. The party, before entering the tender process, entered the contract after mitigating the risk of such an increase. If the purpose of the tender was to limit the risks of price variations, then the interpretation placed by the Arbitral Tribunal cannot be said to be possible one, as it would completely defeat the explicit wordings and purpose of the contract. There is no gainsaying that there will be price fluctuations which a prudent contractor would have taken into margin, while bidding in the tender. Such price fluctuations cannot be brought under Clause 23 unless specific language points to the inclusion31. The interpretation of the Arbitral Tribunal to expand the meaning of Clause 23 to include change in rate of HSD is not a possible interpretation of this contract, as the appellant did not introduce any evidence which proves the same32. The other contractual terms also suggest that the interpretation of the clause, as suggested by the Arbitral Tribunal, is perverse. For instance, Item 1 of List II (Consumables) of Exhibit C (Consolidated Statement of Equipment and Services Furnished by Contractor or Operator for the Onshore Rig Operation), indicates that fuel would be supplied by the contactor, at his expense. The existence of such a clause shows that the interpretation of the contract by the Arbitral Tribunal is not a possible interpretation of the contract.
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G. Appaswami Chettiar And Anr Vs. R. Sarangapani Chettiar & Ors | Madras High Court held that the term "santhathi" is wide enough to include adopted son also. In Rajah Velugoti Govinda Krishna Yachendra Bahadur Varu v. Raja Rajeswara Rao (1939) 1 Mad LJ 831 : (AIR 1939 Mad 614) a Bench of the Madras High Court had to consider the question whether an illegitimate offspring would fall within the words "purusha santhathi". Chief Justice Leach while expressing his view that the words in their widest sense would cover illegitimate descendants in the context it should be understood as excluding illegitimate sons. In the deed of settlement the fifth clause provided that where a male member of any of the three branches should die without purusha santhathi either by way of aurasa or by way of adoption, his allowance should go to the agnates who are nearest to him in his own branch. The learned Chief Justice expressed his view that the reference to the aurasa issue or sons by adoption left no. doubt in his mind that the parties only contemplated the right of maintenance being conferred upon aurasa and adopted sons. Justice Krishnaswami Aiyangar in his concurring judgment in dealing with the words "purusha santhathi" held that the words are Sanskrit in origin but used in the languages of the Madras Presidency. The word "purusha" is translated as "male" and "santhathi" as "issue, progeny or descendants". By aurasa son it is meant "produced from the breast, born of oneself. or legitimate". According to the text of Manu and Yagnavalkya the word is defined as son born of lawful wedlock only. According to Yagnavalkya an aurasa son is he who is produced by a Dharma Patni (lawfully wedded wife). The word "purusha santhathi" is wider than aurasa son. Purusha Santhathi though would exclude illegitimate son may include the adopted son. In the context of the settlement deed because both aurasa as well as adopted son were included, the Bench came to the conclusion that purusha santhathi included both aurasa and adopted son. This case was taken up to the Privy Council and in (1941) 68 Ind App 181 at p. 186 : (AIR 1942 PC 3) the Privy Council agreed with the High Court and held that both the learned Judges of the High Court have rightly decided that if the clause to which the plaintiffs make their appeal is considered in the light of its immediate context, it becomes clear that as the words are used in this deed, a man is said to die without purusha santhathi if he dies leaving neither a legitimate nor an adopted son. Though the case does not specifically decide that santhathi would include an adopted son it must be noted that the learned Judges of the High Court expressed their view that the word santhathi used in its widest sense would cover illegitimate descendants also. Whatever may be the position regarding illegitimate children, we are of the view that an adopted son cannot be excluded from the words "purusha santhathi" though an adopted son may not rank as an aurasa son.17. The learned counsel for the appellants referred to V. S. Aptes Students Sanskrit English Dictionary where the meaning of the word "santhathi" is given at page 582 as "offspring, progeny". The learned counsel also referred to the 10th Skandam. 2nd part, 61st Chapter of Shrimad Bhagavatham and submitted that the term "putra pouthradhi santhathi" would include only children born of the body. We are unable to accept this contention and to read the passages cited as excluding an adopted son. Further, neither the dictionary meaning nor the passage in Shrimad Bhagavatham can be accepted as laying down principles of Hindu Law. We are satisfied that the term "putra pouthra santhathies" cannot be construed as confined to sons, grandsons and their descendants born out of the body excluding the adopted son or his descendants. The High Court, in our view, was in error in coming to the conclusion that the second respondent is not entitled to take the properties under the will as the adopted son of Ramathilakam Ammal, the first respondent.18. The view of the High Court that the second respondent would succeed to Sethu Chettiar as his adopted son is right but as we have held that the second respondent would succeed under the earlier clause of the will which provides that after Ramathilakam Ammal her "poutra puthra santhathies", resort need not be had to the subsequent clause in the will which provides for Sethu Chettiar the husband of Ramathilakam Ammal and his descendants taking the property. In our view, as the second respondent being the adopted son not only of Ramathilakam Ammal but also of her husband Sethu Chettiar, his rights as the adopted son of Ramathilakama Ammal as well as Sethu Chettiar cannot be denied. On the failure of Ramathilakam Ammal not having putra pouthra santhathies or female descendants the property would be taken by sethu chettiar and his santhathies. The fact that Sethu Chettiar died during the lifetime of Ramathilakam Ammal would not affect the vesting in favour of Sethu Chettiars santhathies.19. The learned counsel for the respondents submitted that in any event the appellants cannot succeed as after the Hindu Succession Act came into force in 1956 the life estate which Ramathilakam Ammal had, would ripen into an absolute estate under Act 30 of 1956. This contention was rightly rejected by the High Court as the life estate to which Ramathilakam Ammal was entitled was under the will of her father and therefore S. 14 (2) of the Act would be applicable and the life estate would not be enlarged into an absolute estate.20. As we have held that the adoption is valid and that the second respondent is entitled to take the estate of Gopalasami Chettiar under the will the appellants are not entitled to any declaration in respect of the alienations made by respondents 1 and 2 in favour of respondents 3 and 4 as they are not entitled to any interest in the properties. | 0[ds]The High Court, in our view, was in error in coming to the conclusion that the second respondent is not entitled to take the properties under the will as the adopted son of Ramathilakam Ammal, the first respondent.18. The view of the High Court that the second respondent would succeed to Sethu Chettiar as his adopted son is right but as we have held that the second respondent would succeed under the earlier clause of the will which provides that after Ramathilakam Ammal her "poutra puthra santhathies", resort need not be had to the subsequent clause in the will which provides for Sethu Chettiar the husband of Ramathilakam Ammal and his descendants taking the property. In our view, as the second respondent being the adopted son not only of Ramathilakam Ammal but also of her husband Sethu Chettiar, his rights as the adopted son of Ramathilakama Ammal as well as Sethu Chettiar cannot be denied. On the failure of Ramathilakam Ammal not having putra pouthra santhathies or female descendants the property would be taken by sethu chettiar and his santhathies. The fact that Sethu Chettiar died during the lifetime of Ramathilakam Ammal would not affect the vesting in favour of Sethu Chettiars santhathies.19. The learned counsel for the respondents submitted that in any event the appellants cannot succeed as after the Hindu Succession Act came into force in 1956 the life estate which Ramathilakam Ammal had, would ripen into an absolute estate under Act 30 of 1956. This contention was rightly rejected by the High Court as the life estate to which Ramathilakam Ammal was entitled was under the will of her father and therefore S. 14 (2) of the Act would be applicable and the life estate would not be enlarged into an absolute estate.20. As we have held that the adoption is valid and that the second respondent is entitled to take the estate of Gopalasami Chettiar under the will the appellants are not entitled to any declaration in respect of the alienations made by respondents 1 and 2 in favour of respondents 3 and 4 as they are not entitled to any interest in theshould be evidence of the assent of the kinsmen as suffices to show that the adoption by the widow was in the proper and bona fide performance of a religious duty and not due to capricious or corrupt motive. The reason for the rule requiring the consent of the sapindas is not due to deprivation of proprietary interest of the reversioners but for an assurance that the adoption was a bona fide performance of the religious duty and not due to any capricious action by the widow. In the case of a joint family it is necessary that the widow should consult the elders in the husbands family particularly the father of the husband who is her venerable protector, but when the family is divided the duty of the widow is to consult the agnates of the husband at the first instance. If the consent by the nearer agnates is withheld for improper reasons she can proceed to consult and obtain the consent of remoter agnates.pleas found favour with the trial court though the High Court did not accept it. The High Court considered the matter elaborately and found that requisite consent was obtained. As we agree with the reasoning and the conclusion arrived at by the High Court it is not necessary for us to set out all the facts and reasons for our conclusion in detail. It is sufficient to state that amongst the relations of the first respondents husband the two appellants who are the brothers sons of Sethu Chettiar were admittedly consulted but refused their consent. Pattalam Ramaswami Chettiar is an agnate removed by three degrees. Ramasami Chettiar and Kuppusami Chettiar are two other agnates of Sethu Chettiar. It is mainly on the ground that these three agnates were not consulted that the trial court upheld the plea of the appellants that the necessary consent from sapindas had not been obtained. Pattalam Ramasami Chettiar had attested the adoption deed Ex.executed immediately after the adoption ceremony was over. The High Court found on evidence that Pattalam Ramasami Chettiar was present at the adoption and attested the adoption deed and concluded from the circumstances that he as an attesting witness had knowledge of the purport of the document which he was called upon to attest and therefore it could be reasonably inferred that he was a consenting party to the transaction. Regarding Ramasami Chettiar and Kuppusami Chettiar the High Court found after reference to the evidence of one of the appellants and P. W. 5 examined on their behalf that the two agnates were not proved to be dhayadis of Sethu Chettiar. The High Court rightly pointed out that the attack in paragraphof the plaint was that the consent of the sapindas has not been obtained but there was no. reference to the failure to obtain consent of the sapindas of the husband of the first respondent. The High Court has pointed out that Ramasami Chettiar and Kuppusami Chettiar were admittedly 3 to 4 degrees removed and that Ramasami Chettiar died about 10 years ago. There is no. whisper in the plaint about the widow having failed to obtain consent of Ramasami Chettiar or Kuppusami Chettiar. The High Court was satisfied that Ramasami Chettiar and Kuppusami Chettiar are not proved to be the dhayadis of Sethu Chettiar. The court also found that on their own admission the appellants withheld the consent improperly as they did not want to lose the right to property. The widow had consulted Govindasami Chettiar. Govindarajulu Chettiar, Devaraju Chettair and Ramasami Chettiar, the father of the adopted boy, who were all cognates of the first respondents husband. The High Court also found that Devarajulu Chettiar, another sisters son of Sethu Chettiar who was examined as D.W. 9, had given his consent. The trial court has found that the refusal of the appellants to give their consent is improper and that they had more or less abused their fiduciary position. The first appellant who examined himself as P.W. 1 stated that he had withheld his consent because he was afraid that he would lose his reversionary right to the estate. It is also clear that the appellant was negotiating a price through several persons for giving his consent. On the facts the trial courts as well as the High Court rightly came to the conclusion that the appellants improperly withheld their consent to the adoption. On a consideration of the evidence, we agree with the conclusion arrived at by the High court that the widow had consulted all the necessary sapindas and that the withholding of the consent by the appellants was due to improper motives which would not have the effect of invalidating theAmmal, the first respondent, in her evidence admitted that as the appellants were pestering her with litigation and demanding money, in order to put an end to these troubles, she resorted to adoption. She questioned the advocate whether these troubles would be dispelled if she resorted to adoption and the advocate stated that the appellants would not be able to make any claim for the property if she adopted and that she could live without anxiety. In her chief examination she stated that according to the instructions of the Purohit she made a request to the parents of the boy in the following termsyour son in adoption so that my husband and I shall attain salvation, so that funeral obsequies shall be performed, and so that my family shall berequest was made to the hearing of all the people assembled. The adoption deed Ex.recites that for the purpose that her husband may derive spiritual benefit and that his soul may rest in peace and the annual ceremonies and the other vedic rites of herself and her husband may be performed properly, and that her husbands lineage may be propagated and perpetuated and that heir be found for him, she considered it proper to take in adoption to her husband the second respondent. Inthe first respondent was questioned about her statement as to the reasons for her adoption and she stated that it was for the spiritual benefit "paralokasthanam" of her husband that she had adopted. Reading the evidence as a whole we are satisfied that the reason for adoption was for spiritual benefit of her husband as seen from her declaration at the time of the adoption ceremony and the recitals in the adoption deed which was prepared at the time of the adoption. The statement by her on the stress of thethat she resorted to adoption for putting an end to the troubles by the sapindas which she had in plenty would only disclose how bitter she was against them. The evidence taken as a whole would not justify our coming to the conclusion that the adoption was due to any improper motive by the widow and not for the spiritual benefit of her husband. The trial court was of the view that the appellants were anxious to take money and at the same time the first respondent was willing to give but the negotiations failed because the parties could not agree on the exact figure and having regard to the circumstances the conduct of both the parties is open to criticism. The High Court did not record any clear finding as to the motive of the widow in making the adoption but observed that even conceding that the real motive of the widow in making the adoption was to create an heir for her husband after her demise, if that act incidentally created a son for her husband far from such act being considered the consequence of an improper motive for making the adoption, it would be an altruistic motive with reference to the adoption. The learned counsel questioned the correctness of the view taken by the High Court and submitted that improper motive of the widow would vitiate the validity of the adoption.9. The law is well settled that when there is express authority by the husband or when consent of the sapindas has been properly obtained the motive of the widow is irrelevant. In Kanakaratnam v. Narasimha Rao ILR (1942) Mad 173 : (AIR 1941 Mad 937 ) (FB), it was held that when a widow has received valid authority to adopt, her motive in making the adoption should be ignored, inasmuch as the benefit conferred on her deceased husband by the adoption is in no. way affected by her motives. The Full Bench of the Madras High Court was considering the case in which the widow had valid authority to adopt and held that her motive is entirely irrelevant. It proceeded to state. "However spiteful her action may be towards others the benefit conferred upon her deceased husband by her action is in no. way affected, and the fact that she comnot act without authority makes the position all the more clear." The decision leads to the inquiry as to how far the motive is relevant in a case in which the widow has not got the requisite authority. In Ramnad case (supra) it was held that the adoption should not be from capricious or from a corrupt motive. Widows motive in making the adoption is not really a factor for the emphasis in Ramnad case was regarding the consent of the nearest sapindas. If such consent had been obtained the motive is irrelevant and in the absence of the authority of the husband and without valid consent of the sapindas the adoption will be invalid whatever her motive may be. In the circumstances, the motive of the widow would not normally be relevant.We cannot ignore the development that has taken place in the society at large during the space of one hundred years since the Ramnad case (supra) was decided and 50 years since Kumaraswami Sastri J. gave expression to his views on the matter.13. The basis for requiring the assent of the sapindas is on the ground of the presumed incapacity of a woman. According to the text of Yagnavalkya in Ch. I, Verse 85 and in Ch. II, Verse130 it is stated that the father should protect a maiden. husband a married woman and sons their mother as she is not fit for independence. In Ramnad case (1867) 12 Moo Ind App 397 (PC) (supra) this doctrine was recognised and the Privy Council ruleassent of kinsmen seems to be required by reason of the presumed incapacity of women for independence, rather than the necessity of procuring the consent of all those whose possible and reversionary interest in the estate would be defeated by theshould be such evidence of the assent of Kinsmen as suffices to show, that the act is done by the widow in the proper and bona fide performance of a religious duty, and neither capriciously nor from a corrupt motive. Justice Subbarao, as he then was, summed up the law thus in Chandrashekhara Mudaliar v. Qulandaivelu Mudaliar (1963) 2 SCR 440 : (AIR 1963 SCwill be seen that the reason for the rule is not the possible deprivation of the proprietary interests of the reversioners but the state of perpetual tutelage of women, and the consent of kinsmen was considered to be an assurance that it was a bona fide performance of a religious duty and a sufficient guarantee against any capricious action by the widow in taking a boy inbasis for the assent of the kinsmen by reason of the presumed incapacity of women for independence seems to have disappeared. During the hundred years society has advanced and the presumption of incapacity of women for independence can no. longer be taken for granted. Apart form the Constitutional guarantee that there will be no. discrimination against any citizen on the ground of sex, it is clear that women have established that the presumption of incapacity for independence is no. longer available. It isthat women have occupied highest positions and have proved themselves equal to men in all professional and other avocations. In the changed circumstances therefore the basis for the requirement of the assent of kinsmen by a widow due to incapacity no. longer exists and it may well be asked whether the sapindas assent is any more necessary. Added to this circumstance is the codification of personal law of the Hindus on several branches of Hindu law.The Hindu Marriage Act, 1955 has codified the law or the subject of marriage and divorce.The Hindu Succession Act, 1956 has codified the law relating to intestate succession.The Hindu Minority and Guardianship Act, 1956 has codified the law relating to minorities and guardianship among Hindus andthe Hindu Adoptions and Maintenance Act, 1956 has codified the law of adoption and maintenance. The codified law has made several changes in the law of adoption. With the passing of the Hindu Succession Act, 1956, sons and daughters are treated equally in the matter of succession. Equality in status is recognised in the matter of adoptions also. The Hindu Adoptions and Maintenance Act, 1956, provides for adoption of boys as well as girls. Formerly. a woman could adopt only to her husband but now she can adopt for herself. A widow can now adopt a son or daughter to herself in her own right. No. question of divesting of any property vested in any person arises for under the Succession Act she is entitled to take the property absolutely. Under the changed circumstances therefore the questions of the sapindas consent or depriving him of his reversionary interest or the motive of the widow for adoption do not arise. But as in this case the second respondent was adopted on 10th September, 1953 i.e. three years beforethe Hindu Adoptions and Maintenance Act, 1956 came into force the law that was applicable before the Act came into force will be applicable to the present case. Though the Act came into force in 1956 and this adoption was in 1953 before the Act came into force we have to take into account the changed circumstances particularly disappearance of the basis of the requirement of sapindas assent on the ground of presumed incapacity of the women.14. It may also be noted that the facts of the present case are different from the case of Sri Krishnayya Rao v. Surya Rao Bhadur Garu (AIR 1935 PC 190 ) (supra) where the widow stipulateed that half the estate should be given over to her absolutely and maintenance provided. In the present case there has been no. stipulation by the widow for any settlement of property or maintenance and on her by the adopted son or his father. The only ground on which the adoption was attacked was that the motive of the widow was to deprive the sapindas of the property and not for the spiritual benefit of the husband. We have already recorded a finding that the motive for adopting the son was spiritual benefit. The circumstance that led to the consideration of the motive of the widow in the case referred to namely a provision for settlement of half the properties for discharging debts at the time of the adoption does not arise in this case.To consider the question whether the second respondent is entitled to inherit as the adopted son of Ramathilakam which claim was negatived by the High Court and the question whether the High Court was right in its conclusion that the second respondent would be entitled to the legacy as the adopted son of Sethu Chettiar, it is necessary to set out the relevant parts of the will. Paragraph 2 of the will refers to charities specified in List II. The charities were to be performed by the testators third wife Seshammal and after her by his daughter Ramathilakam Ammal and after her by her sons and grandsons, failing them by her female heirs and if they are not available by sethu Chettiar, husband of Ramathilhakam Ammal and his Putra Pouthra Santhathies permanently from generation to generation. Immoveable properties are described in List III and according to the will after the lifetime of the third wife Seshammal, the immoveable properties specified in List III as well as cash and moveable properties should be taken and enjoyed by Ramathilakam Ammal and after her by her Putra Pouthra Santhathies, and if they are not in case, by her female descendants and in case they too are not in case, by his sisters son Sethu Chettiar. the husband of the aforesaid Ramathilakam Ammal and after him by his santhathies. According to the terms of the will the properties are to be enjoyed by Ramathilakam Ammal and after her by her putra pouthra santhathies. The contention of the learned counsel for the appellants is that the words "putra pouthra santhathies" would only include the sons born to Ramathilakam Ammal and would not include an adopted son. Support for this contention is sought to be derived by the subsequent clause in the will which provides that if putra pouthra santhathies are not in case, by her female descendants. The High Court accepted the contention holding that if the intention was to include an adopted son it would not have been necessary to give the estate to Sethu Chettiar the husband of Ramathilakam Ammal. From this the High Court inferred that the intention of the testator was that after the failure and in the absence of male issue the property is to be succeeded by the daughters of Ramathilakam Ammal. This would indicate that the property was to be given to the children born of the body of Ramathilakam Ammal. We are unable to construe the will in the manner in which the High Court has done. The words "putra pouthra santhathies" would indicate son, grandson and descendants. We are unable to infer that the word "putra" is confined only to children born of the body of Ramathilakam Ammal. Hindu Law has recognised the institution of adoption and once a boy is adopted validly he for all purposes is recognised as the son. We do not see any justification for excluding an adopted son from the term "putra". Neither are we satisfied that the term "santhathies" would exclude adopted son and his descendants. In Tirupathi Nicken v. Venkatasubba Naicken (1928) 28 Mad LW 819, a Bench of the Madras High Court held that the term "santhathi" is wide enough to include adopted son also. In Rajah Velugoti Govinda Krishna Yachendra Bahadur Varu v. Raja Rajeswara Rao (1939) 1 Mad LJ 831 : (AIR 1939 Mad 614) a Bench of the Madras High Court had to consider the question whether an illegitimate offspring would fall within the words "purusha santhathi". Chief Justice Leach while expressing his view that the words in their widest sense would cover illegitimate descendants in the context it should be understood as excluding illegitimate sons. In the deed of settlement the fifth clause provided that where a male member of any of the three branches should die without purusha santhathi either by way of aurasa or by way of adoption, his allowance should go to the agnates who are nearest to him in his own branch. The learned Chief Justice expressed his view that the reference to the aurasa issue or sons by adoption left no. doubt in his mind that the parties only contemplated the right of maintenance being conferred upon aurasa and adopted sons. Justice Krishnaswami Aiyangar in his concurring judgment in dealing with the words "purusha santhathi" held that the words are Sanskrit in origin but used in the languages of the Madras Presidency. The word "purusha" is translated as "male" and "santhathi" as "issue, progeny or descendants". By aurasa son it is meant "produced from the breast, born of oneself. or legitimate". According to the text of Manu and Yagnavalkya the word is defined as son born of lawful wedlock only. According to Yagnavalkya an aurasa son is he who is produced by a Dharma Patni (lawfully wedded wife). The word "purusha santhathi" is wider than aurasa son. Purusha Santhathi though would exclude illegitimate son may include the adopted son. In the context of the settlement deed because both aurasa as well as adopted son were included, the Bench came to the conclusion that purusha santhathi included both aurasa and adopted son. This case was taken up to the Privy Council and in (1941) 68 Ind App 181 at p. 186 : (AIR 1942 PC 3) the Privy Council agreed with the High Court and held that both the learned Judges of the High Court have rightly decided that if the clause to which the plaintiffs make their appeal is considered in the light of its immediate context, it becomes clear that as the words are used in this deed, a man is said to die without purusha santhathi if he dies leaving neither a legitimate nor an adopted son. Though the case does not specifically decide that santhathi would include an adopted son it must be noted that the learned Judges of the High Court expressed their view that the word santhathi used in its widest sense would cover illegitimate descendants also. Whatever may be the position regarding illegitimate children, we are of the view that an adopted son cannot be excluded from the words "purusha santhathi" though an adopted son may not rank as an aurasaare unable to accept this contention and to read the passages cited as excluding an adopted son. Further, neither the dictionary meaning nor the passage in Shrimad Bhagavatham can be accepted as laying down principles of Hindu Law. We are satisfied that the term "putra pouthra santhathies" cannot be construed as confined to sons, grandsons and their descendants born out of the body excluding the adopted son or his descendants.The High Court, in our view, was in error in coming to the conclusion that the second respondent is not entitled to take the properties under the will as the adopted son of Ramathilakam Ammal, the first respondent. | 0 | 7,388 | 4,286 | ### Instruction:
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Madras High Court held that the term "santhathi" is wide enough to include adopted son also. In Rajah Velugoti Govinda Krishna Yachendra Bahadur Varu v. Raja Rajeswara Rao (1939) 1 Mad LJ 831 : (AIR 1939 Mad 614) a Bench of the Madras High Court had to consider the question whether an illegitimate offspring would fall within the words "purusha santhathi". Chief Justice Leach while expressing his view that the words in their widest sense would cover illegitimate descendants in the context it should be understood as excluding illegitimate sons. In the deed of settlement the fifth clause provided that where a male member of any of the three branches should die without purusha santhathi either by way of aurasa or by way of adoption, his allowance should go to the agnates who are nearest to him in his own branch. The learned Chief Justice expressed his view that the reference to the aurasa issue or sons by adoption left no. doubt in his mind that the parties only contemplated the right of maintenance being conferred upon aurasa and adopted sons. Justice Krishnaswami Aiyangar in his concurring judgment in dealing with the words "purusha santhathi" held that the words are Sanskrit in origin but used in the languages of the Madras Presidency. The word "purusha" is translated as "male" and "santhathi" as "issue, progeny or descendants". By aurasa son it is meant "produced from the breast, born of oneself. or legitimate". According to the text of Manu and Yagnavalkya the word is defined as son born of lawful wedlock only. According to Yagnavalkya an aurasa son is he who is produced by a Dharma Patni (lawfully wedded wife). The word "purusha santhathi" is wider than aurasa son. Purusha Santhathi though would exclude illegitimate son may include the adopted son. In the context of the settlement deed because both aurasa as well as adopted son were included, the Bench came to the conclusion that purusha santhathi included both aurasa and adopted son. This case was taken up to the Privy Council and in (1941) 68 Ind App 181 at p. 186 : (AIR 1942 PC 3) the Privy Council agreed with the High Court and held that both the learned Judges of the High Court have rightly decided that if the clause to which the plaintiffs make their appeal is considered in the light of its immediate context, it becomes clear that as the words are used in this deed, a man is said to die without purusha santhathi if he dies leaving neither a legitimate nor an adopted son. Though the case does not specifically decide that santhathi would include an adopted son it must be noted that the learned Judges of the High Court expressed their view that the word santhathi used in its widest sense would cover illegitimate descendants also. Whatever may be the position regarding illegitimate children, we are of the view that an adopted son cannot be excluded from the words "purusha santhathi" though an adopted son may not rank as an aurasa son.17. The learned counsel for the appellants referred to V. S. Aptes Students Sanskrit English Dictionary where the meaning of the word "santhathi" is given at page 582 as "offspring, progeny". The learned counsel also referred to the 10th Skandam. 2nd part, 61st Chapter of Shrimad Bhagavatham and submitted that the term "putra pouthradhi santhathi" would include only children born of the body. We are unable to accept this contention and to read the passages cited as excluding an adopted son. Further, neither the dictionary meaning nor the passage in Shrimad Bhagavatham can be accepted as laying down principles of Hindu Law. We are satisfied that the term "putra pouthra santhathies" cannot be construed as confined to sons, grandsons and their descendants born out of the body excluding the adopted son or his descendants. The High Court, in our view, was in error in coming to the conclusion that the second respondent is not entitled to take the properties under the will as the adopted son of Ramathilakam Ammal, the first respondent.18. The view of the High Court that the second respondent would succeed to Sethu Chettiar as his adopted son is right but as we have held that the second respondent would succeed under the earlier clause of the will which provides that after Ramathilakam Ammal her "poutra puthra santhathies", resort need not be had to the subsequent clause in the will which provides for Sethu Chettiar the husband of Ramathilakam Ammal and his descendants taking the property. In our view, as the second respondent being the adopted son not only of Ramathilakam Ammal but also of her husband Sethu Chettiar, his rights as the adopted son of Ramathilakama Ammal as well as Sethu Chettiar cannot be denied. On the failure of Ramathilakam Ammal not having putra pouthra santhathies or female descendants the property would be taken by sethu chettiar and his santhathies. The fact that Sethu Chettiar died during the lifetime of Ramathilakam Ammal would not affect the vesting in favour of Sethu Chettiars santhathies.19. The learned counsel for the respondents submitted that in any event the appellants cannot succeed as after the Hindu Succession Act came into force in 1956 the life estate which Ramathilakam Ammal had, would ripen into an absolute estate under Act 30 of 1956. This contention was rightly rejected by the High Court as the life estate to which Ramathilakam Ammal was entitled was under the will of her father and therefore S. 14 (2) of the Act would be applicable and the life estate would not be enlarged into an absolute estate.20. As we have held that the adoption is valid and that the second respondent is entitled to take the estate of Gopalasami Chettiar under the will the appellants are not entitled to any declaration in respect of the alienations made by respondents 1 and 2 in favour of respondents 3 and 4 as they are not entitled to any interest in the properties.
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0
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to generation. Immoveable properties are described in List III and according to the will after the lifetime of the third wife Seshammal, the immoveable properties specified in List III as well as cash and moveable properties should be taken and enjoyed by Ramathilakam Ammal and after her by her Putra Pouthra Santhathies, and if they are not in case, by her female descendants and in case they too are not in case, by his sisters son Sethu Chettiar. the husband of the aforesaid Ramathilakam Ammal and after him by his santhathies. According to the terms of the will the properties are to be enjoyed by Ramathilakam Ammal and after her by her putra pouthra santhathies. The contention of the learned counsel for the appellants is that the words "putra pouthra santhathies" would only include the sons born to Ramathilakam Ammal and would not include an adopted son. Support for this contention is sought to be derived by the subsequent clause in the will which provides that if putra pouthra santhathies are not in case, by her female descendants. The High Court accepted the contention holding that if the intention was to include an adopted son it would not have been necessary to give the estate to Sethu Chettiar the husband of Ramathilakam Ammal. From this the High Court inferred that the intention of the testator was that after the failure and in the absence of male issue the property is to be succeeded by the daughters of Ramathilakam Ammal. This would indicate that the property was to be given to the children born of the body of Ramathilakam Ammal. We are unable to construe the will in the manner in which the High Court has done. The words "putra pouthra santhathies" would indicate son, grandson and descendants. We are unable to infer that the word "putra" is confined only to children born of the body of Ramathilakam Ammal. Hindu Law has recognised the institution of adoption and once a boy is adopted validly he for all purposes is recognised as the son. We do not see any justification for excluding an adopted son from the term "putra". Neither are we satisfied that the term "santhathies" would exclude adopted son and his descendants. In Tirupathi Nicken v. Venkatasubba Naicken (1928) 28 Mad LW 819, a Bench of the Madras High Court held that the term "santhathi" is wide enough to include adopted son also. In Rajah Velugoti Govinda Krishna Yachendra Bahadur Varu v. Raja Rajeswara Rao (1939) 1 Mad LJ 831 : (AIR 1939 Mad 614) a Bench of the Madras High Court had to consider the question whether an illegitimate offspring would fall within the words "purusha santhathi". Chief Justice Leach while expressing his view that the words in their widest sense would cover illegitimate descendants in the context it should be understood as excluding illegitimate sons. In the deed of settlement the fifth clause provided that where a male member of any of the three branches should die without purusha santhathi either by way of aurasa or by way of adoption, his allowance should go to the agnates who are nearest to him in his own branch. The learned Chief Justice expressed his view that the reference to the aurasa issue or sons by adoption left no. doubt in his mind that the parties only contemplated the right of maintenance being conferred upon aurasa and adopted sons. Justice Krishnaswami Aiyangar in his concurring judgment in dealing with the words "purusha santhathi" held that the words are Sanskrit in origin but used in the languages of the Madras Presidency. The word "purusha" is translated as "male" and "santhathi" as "issue, progeny or descendants". By aurasa son it is meant "produced from the breast, born of oneself. or legitimate". According to the text of Manu and Yagnavalkya the word is defined as son born of lawful wedlock only. According to Yagnavalkya an aurasa son is he who is produced by a Dharma Patni (lawfully wedded wife). The word "purusha santhathi" is wider than aurasa son. Purusha Santhathi though would exclude illegitimate son may include the adopted son. In the context of the settlement deed because both aurasa as well as adopted son were included, the Bench came to the conclusion that purusha santhathi included both aurasa and adopted son. This case was taken up to the Privy Council and in (1941) 68 Ind App 181 at p. 186 : (AIR 1942 PC 3) the Privy Council agreed with the High Court and held that both the learned Judges of the High Court have rightly decided that if the clause to which the plaintiffs make their appeal is considered in the light of its immediate context, it becomes clear that as the words are used in this deed, a man is said to die without purusha santhathi if he dies leaving neither a legitimate nor an adopted son. Though the case does not specifically decide that santhathi would include an adopted son it must be noted that the learned Judges of the High Court expressed their view that the word santhathi used in its widest sense would cover illegitimate descendants also. Whatever may be the position regarding illegitimate children, we are of the view that an adopted son cannot be excluded from the words "purusha santhathi" though an adopted son may not rank as an aurasaare unable to accept this contention and to read the passages cited as excluding an adopted son. Further, neither the dictionary meaning nor the passage in Shrimad Bhagavatham can be accepted as laying down principles of Hindu Law. We are satisfied that the term "putra pouthra santhathies" cannot be construed as confined to sons, grandsons and their descendants born out of the body excluding the adopted son or his descendants.The High Court, in our view, was in error in coming to the conclusion that the second respondent is not entitled to take the properties under the will as the adopted son of Ramathilakam Ammal, the first respondent.
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Commissioner, Lucknow Division And Ors Vs. Kumari Prem Lata Misra | an assistant teacher in the basic section o f the college in 1961. Following certain incidents involving her, she was suspended on or about August 20, 1970. and ultimately her services were terminated by the managing committee of the college some time in October 1970. She flied a writ petition in the High Court at Allahabad (Lucknow Bench) alleging inter alia that the order terminating her services was mala fide and made in violation of the regulations framed under the (U.P.) Intermediate Education Act, 1921. She asked for a writ of certiorari quashing the order of suspension and the order terminating her services, and a writ of mandamus directing the opposite parties to pay the full salary and emoluments due to her. The president of the managing committee of the college, the principal, the head mistress of the basic section and the committee of management were impleaded as opposite parties 1, 2, 3, and 4 respectively. The writ petition was dismissed by a single Judge of the High Court on a preliminary ground that none of the opposite parties was a public authority and the impugned orders suspending her and terminating her services were not made in the exercise of any statutory function. On appeal a Division Bench of the High Court took the view that the basic section of the college was an integral part of the college and held that the managing committee of the college was a statutory body constituted under the Intermediate Education Act and governed by the regulations framed thereunder. The Division Bench therefore found t he writ petition maintainable and remanded the case to the single Judge to be decided on merits.The Intermediate Education Act, 1921, as its long title-shows, is an Act for the establishment of a Board of High School and Intermediate Education. The preamble says that it was enacted because it was expedient to establish a Board to take the place of the Allahabad University in regulating and supervising the system o f High school and Intermediate education in the United Provinces, and to prescribe courses therefore. Section 2 of the Act defines, among other terms, Board. Institution, and Recognition. Board means the Board of High School and Intermediate Education. Institution means the whole of an institution or a part thereof, as the case may be. Recognition means recognition for the purpose of preparing candidates for ad mission to the Boards examination. Admittedly, Colvin Taluqdars College is a recognised institution. Section 7 which defines the powers of the Board, after enumerating certain specific powers, states that the Board will have the power "to do all such other acts and things as may be requisite in order to further the objects of the Board as a body constituted for regulating and supervising High School and Intermediate Education". The powers mentioned in section 7 all relate to High school and Intermediate classes. Section 16-A lays down that for every recognised institution there shall be a scheme of administration which must provide, among other matters, for the constitution of a committee of management. Section 16-B and section 16-C deal with the preparation of the scheme of administration. Section 16-D authorises the Director of Uttar Pradesh to cause inspection of a recognized institution from time to time and order the removal of any defect found on inspection. Sections 16E, 16F and 16G provide for the qualifications and the conditions of service of the teachers Of a recognized institution. Thus all these sections are confined in their application to recognized institutions only. Regulations have been framed under the Act in respect of matters covered by section 16-A to section 16-G. Regulations 31 to 45 in Chapter III of the Regulations deal with the subject of punishment, enquiry and suspension of the employees of a recognized institution. It is said that the suspension and dismissal of the respondent was not in accordance with these regulations.It seems clear from the provisions set out above that they all relate to recognized institutions; recognition is by the Board for the purpose of pre paring candidates for admission to the Boards examination, and Board means the Board of High School and Intermediate Education. The basic section of a school cannot therefore be part of a recognized institution. We are unable to agree with the view taken by the Division Bench of the High Court that the basic section is an integral part of the institution and therefore must be governed by the provisions of the Intermediate Education Act, 1921. A school by extending its operation to fields beyond that covered by the Act cannot extend the ambit of the Act to include in its sweep these new fields of education which are outside its scope. The case of the appellants on this point appears from the counter-affidavit filed by them in answer to the writ petition. It is said that "the college is running the Basic Section independently and is neither registered by the Government nor affiliated by any local body-and neither any grant in aid is being taken by the department to run this section accordingly. The college has its own rules and regulations to conduct the Basic Section." It is not correct to think that since the college has to have a committee of management as required by section 16-A, a managing committee that looks after the affairs of the Basic Section of the college must als o be functioning as a statutory body discharging duties under the Intermediate Education Act and governed by the Regulations framed thereunder. The Division Bench sought support for the view it had taken from some pro visions in the Educational Code of Uttar Pradesh but, as pointed by the learned single Judge, the Code is only a compilation of the various administrative rules and orders relating to educational institutions in the State and has no statutory force.3. For the reasons stated above, it must be held that the appellants were not discharging any statutory function in making the impugned orders affecting the respondent. | 1[ds]It seems clear from the provisions set out above that they all relate to recognized institutions; recognition is by the Board for the purpose of pre paring candidates for admission to the Boards examination, and Board means the Board of High School and Intermediate Education. The basic section of a school cannot therefore be part of a recognized institution. We are unable to agree with the view taken by the Division Bench of the High Court that the basic section is an integral part of the institution and therefore must be governed by the provisions of the Intermediate Education Act, 1921. A school by extending its operation to fields beyond that covered by the Act cannot extend the ambit of the Act to include in its sweep these new fields of education which are outside its scope. The case of the appellants on this point appears from thefiled by them in answer to the writ petition. It is said that "the college is running the Basic Section independently and is neither registered by the Government nor affiliated by any localneither any grant in aid is being taken by the department to run this section accordingly. The college has its own rules and regulations to conduct the Basic Section." It is not correct to think that since the college has to have a committee of management as required by sectiona managing committee that looks after the affairs of the Basic Section of the college must als o be functioning as a statutory body discharging duties under the Intermediate Education Act and governed by the Regulations framed thereunder. The Division Bench sought support for the view it had taken from some pro visions in the Educational Code of Uttar Pradesh but, as pointed by the learned single Judge, the Code is only a compilation of the various administrative rules and orders relating to educational institutions in the State and has no statutory force. | 1 | 1,211 | 343 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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an assistant teacher in the basic section o f the college in 1961. Following certain incidents involving her, she was suspended on or about August 20, 1970. and ultimately her services were terminated by the managing committee of the college some time in October 1970. She flied a writ petition in the High Court at Allahabad (Lucknow Bench) alleging inter alia that the order terminating her services was mala fide and made in violation of the regulations framed under the (U.P.) Intermediate Education Act, 1921. She asked for a writ of certiorari quashing the order of suspension and the order terminating her services, and a writ of mandamus directing the opposite parties to pay the full salary and emoluments due to her. The president of the managing committee of the college, the principal, the head mistress of the basic section and the committee of management were impleaded as opposite parties 1, 2, 3, and 4 respectively. The writ petition was dismissed by a single Judge of the High Court on a preliminary ground that none of the opposite parties was a public authority and the impugned orders suspending her and terminating her services were not made in the exercise of any statutory function. On appeal a Division Bench of the High Court took the view that the basic section of the college was an integral part of the college and held that the managing committee of the college was a statutory body constituted under the Intermediate Education Act and governed by the regulations framed thereunder. The Division Bench therefore found t he writ petition maintainable and remanded the case to the single Judge to be decided on merits.The Intermediate Education Act, 1921, as its long title-shows, is an Act for the establishment of a Board of High School and Intermediate Education. The preamble says that it was enacted because it was expedient to establish a Board to take the place of the Allahabad University in regulating and supervising the system o f High school and Intermediate education in the United Provinces, and to prescribe courses therefore. Section 2 of the Act defines, among other terms, Board. Institution, and Recognition. Board means the Board of High School and Intermediate Education. Institution means the whole of an institution or a part thereof, as the case may be. Recognition means recognition for the purpose of preparing candidates for ad mission to the Boards examination. Admittedly, Colvin Taluqdars College is a recognised institution. Section 7 which defines the powers of the Board, after enumerating certain specific powers, states that the Board will have the power "to do all such other acts and things as may be requisite in order to further the objects of the Board as a body constituted for regulating and supervising High School and Intermediate Education". The powers mentioned in section 7 all relate to High school and Intermediate classes. Section 16-A lays down that for every recognised institution there shall be a scheme of administration which must provide, among other matters, for the constitution of a committee of management. Section 16-B and section 16-C deal with the preparation of the scheme of administration. Section 16-D authorises the Director of Uttar Pradesh to cause inspection of a recognized institution from time to time and order the removal of any defect found on inspection. Sections 16E, 16F and 16G provide for the qualifications and the conditions of service of the teachers Of a recognized institution. Thus all these sections are confined in their application to recognized institutions only. Regulations have been framed under the Act in respect of matters covered by section 16-A to section 16-G. Regulations 31 to 45 in Chapter III of the Regulations deal with the subject of punishment, enquiry and suspension of the employees of a recognized institution. It is said that the suspension and dismissal of the respondent was not in accordance with these regulations.It seems clear from the provisions set out above that they all relate to recognized institutions; recognition is by the Board for the purpose of pre paring candidates for admission to the Boards examination, and Board means the Board of High School and Intermediate Education. The basic section of a school cannot therefore be part of a recognized institution. We are unable to agree with the view taken by the Division Bench of the High Court that the basic section is an integral part of the institution and therefore must be governed by the provisions of the Intermediate Education Act, 1921. A school by extending its operation to fields beyond that covered by the Act cannot extend the ambit of the Act to include in its sweep these new fields of education which are outside its scope. The case of the appellants on this point appears from the counter-affidavit filed by them in answer to the writ petition. It is said that "the college is running the Basic Section independently and is neither registered by the Government nor affiliated by any local body-and neither any grant in aid is being taken by the department to run this section accordingly. The college has its own rules and regulations to conduct the Basic Section." It is not correct to think that since the college has to have a committee of management as required by section 16-A, a managing committee that looks after the affairs of the Basic Section of the college must als o be functioning as a statutory body discharging duties under the Intermediate Education Act and governed by the Regulations framed thereunder. The Division Bench sought support for the view it had taken from some pro visions in the Educational Code of Uttar Pradesh but, as pointed by the learned single Judge, the Code is only a compilation of the various administrative rules and orders relating to educational institutions in the State and has no statutory force.3. For the reasons stated above, it must be held that the appellants were not discharging any statutory function in making the impugned orders affecting the respondent.
### Response:
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### Explanation:
It seems clear from the provisions set out above that they all relate to recognized institutions; recognition is by the Board for the purpose of pre paring candidates for admission to the Boards examination, and Board means the Board of High School and Intermediate Education. The basic section of a school cannot therefore be part of a recognized institution. We are unable to agree with the view taken by the Division Bench of the High Court that the basic section is an integral part of the institution and therefore must be governed by the provisions of the Intermediate Education Act, 1921. A school by extending its operation to fields beyond that covered by the Act cannot extend the ambit of the Act to include in its sweep these new fields of education which are outside its scope. The case of the appellants on this point appears from thefiled by them in answer to the writ petition. It is said that "the college is running the Basic Section independently and is neither registered by the Government nor affiliated by any localneither any grant in aid is being taken by the department to run this section accordingly. The college has its own rules and regulations to conduct the Basic Section." It is not correct to think that since the college has to have a committee of management as required by sectiona managing committee that looks after the affairs of the Basic Section of the college must als o be functioning as a statutory body discharging duties under the Intermediate Education Act and governed by the Regulations framed thereunder. The Division Bench sought support for the view it had taken from some pro visions in the Educational Code of Uttar Pradesh but, as pointed by the learned single Judge, the Code is only a compilation of the various administrative rules and orders relating to educational institutions in the State and has no statutory force.
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State Of Madhya Pradesh Vs. Abdeali | the order of the High Court quashing the assessment will be erroneous.We now proceed to consider these alternative submissions of learned counsel for the appellants. We do not think that the notification dated January 28, 1956, makes any such discrimination between footwear manufactured or produced in the State of Madhya Pradesh and footwear imported from other States as is prohibited by Article 304(a) of the Constitution.10. We have already pointed out that the exemption granted by the notification in question depends on the fulfilment of three conditions and all the three conditions are equally applicable to footwear manufactured or produced in the State and footwear imported from other States. It is obvious that the exemption is for the protection and benefit of small manufacturers who make hand-made shoes of small value and who may be unable to compete with large-scale manufacturers of footwear made on machines. Such a classification in the interests of small manufacturers has often been made and upheld by this Court. (See Orient Weaving Mills (P.) Ltd. v. The Union of India (Petition No. 110 of 1961 decided on February 28, 1962) and The British India Corporation Ltd. v. The Collector of Central Excise, Allahabad (Petition No. 94 of 1955 decided on August 20, 1962)).11. In the course of his arguments learned counsel for the respondent has first supported the interpretation put on the notification by the High Court. That question we have already dealt with earlier in this judgment. Learned counsel for the respondent has then submitted that the discrimination arises in the following way. He points out that a small manufacturer outside the State has to travel into the State and sell hand-made shoes there in order to get the benefit of the exemption, whereas a small manufacturer in the State has not to travel anywhere in order to get the benefit of the exemption. This, learned counsel has submitted, results in such discrimination as is forbidden by Article 304(a) of the Constitution. We do not agree. The argument of learned counsel for the respondent is really an argument of inconvenience. The exemption by itself creates no discrimination between footwear manufactured or produced in the State and imported from outside. Even a small manufacturer in the State must fulfil the conditions laid down by the notification in question before he can claim exemption from tax; in other words, he or a member of his family must also sell the hand-made shoes before he can claim the exemption. So must a small manufacturer outside the State if he wants to claim the benefit of the exemption. Unless he has travelled and brought the goods into another State, Article 304(a) does not apply; hence he cannot complain under that Article that he has to travel. It is worthy of note that the exemption relates to sales in the State and that is why a small manufacturer outside the State can claim no benefit of the exemption with regard to sales outside the State which are not taxable under the Act. It is necessary here to refer to one other point which has been urged by learned counsel for the respondent.12. Learned counsel has pointed out that the word "himself" used in the earlier notification of May 27, 1955, in connection with the word "manufacturer" has been omitted from the later notification of January 28, 1956, and he has contended that by reason of the omission of the word "himself" the benefit of the later notification may be available to a servant or an agent of the manufacturer. We do not think that this question falls for decision in the present appeal. The respondent in the present case is neither a servant nor an agent of the manufacturer. It is admitted that he is merely an importer and in his case nothing turns upon the omission of the word "himself" from the later notification.We also agree with the alternative submission of learned counsel for the appellants that if the notification dated January 28, 1956, is bad, then the respondent stands to gain nothing. If the exemption notification is struck down as invalid, that will not affect the validity of the notification of October 24, 1953, particularly of item 32 of Schedule 3 thereof. Learned counsel for the respondent has submitted that the two notifications must be read together and if the exemption goes, the notification of October 24, 1953, issued under section 5 of the Act must also go. We are unable to agree. The notification of October 24, 1953, fixes the point of sale at which the tax is to be imposed. The rate of tax is fixed by section 5 of the Act. There is no reason why the notification dated October 24, 1953, should fall with the notification dated January 28, 1956, which was issued under section 4(3) of the Act. The principle laid down by this Court in Ram Narain Sons Ltd. v. Assistant Commissioner of Sales Tax ([1955] 2 S.C.R. 483; 6 S.T.C. 627), that where an assessment consists of a single undivided sum in respect of the totality of the property treated as assessable, the wrongful inclusion in it of certain items of property which by virtue of a provision of law were expressly exempted from taxation, renders the assessment invalid in toto, will not apply in the present case for the simple reason that there is no wrongful inclusion of any item in the assessment order. If the exemption goes, then the respondent has been rightly assessed on his total turnover. It is only when the respondent is entitled to the exemption claimed that he can say that the assessment is bad and must be quashed. The respondent can claim the exemption only if the interpretation put by the High Court on the notification dated January 28, 1956, is accepted as correct. If that interpretation is not correct, then this appeal must be allowed even if the notification is bad by reason of the provisions of Article 304(a) of the Constitution. | 1[ds]We think that this contention is right and must be accepted. The notification clearly lays down three conditions for the grant of exemption : one of the conditions is that the sale must be of such shoes, chappals, country shoes and footwear as are hand-made and not manufactured on power machine; the second condition is that the sale price must not exceed Rs. 12-8-0; and the third condition is that the sale must be by the manufacturer or any member of his family. The notification when it uses the expression "in case of sale" must refer to the sale which is being exempted from tax in the State; in other words, it has reference to the taxable event in the State as per Schedule 3 of the notification dated October 24, 1953. That notification makes it clear that the tax is a single point tax, and the taxable event is the sale by the importer or manufacturer in the State. Therefore, the expression "in case of sale" in the exemption notification can have no reference to a sale outside the State. The High Court was in error when it said that it made no difference whether the sale was by the manufacturer within the State directly to the purchaser or whether the sale was by the manufacturer outside the State to the importer who then sold the shoes to the purchaser in the State. When a manufacturer sells shoes outside the State to an importer and the importer again sells shoes in the State, there are really two sales, one outside the State and one inside it. The sales outside the State are not taxable under the Act and the notification of January 28, 1956, has no reference to such sales. When the notification uses the expression "in case of sale by the manufacturer or a member of his family", it has reference to such sales as would come but for the exemption within item 32 of Schedule 3 of the notification dated October 24, 1953. If the interpretation put by the High Court is correct, then the practical effect will be to obliterate one of the conditions laid down in the notification, namely, that the sale, which is the taxable event, must be by the manufacturer or any member of his family. We do not think that the notification is capable of such an interpretation. All the three conditions laid down in the notification must be fulfilled before the exemption referred to therein can be claimed and we cannot, by interpretation, delete one of the conditions.On the question whether the notification contravenes Article 304(a) of the Constitution learned counsel for the appellants has canvassed before us the larger question that Article 304(a) has no reference to sales taxnow proceed to consider these alternative submissions of learned counsel for the appellants. We do not think that the notification dated January 28, 1956, makes any such discrimination between footwear manufactured or produced in the State of Madhya Pradesh and footwear imported from other States as is prohibited by Article 304(a) of the Constitution.We have already pointed out that the exemption granted by the notification in question depends on the fulfilment of three conditions and all the three conditions are equally applicable to footwear manufactured or produced in the State and footwear imported from other States. It is obvious that the exemption is for the protection and benefit of small manufacturers who make hand-made shoes of small value and who may be unable to compete with large-scale manufacturers of footwear made ondo not agree. The argument of learned counsel for the respondent is really an argument of inconvenience. The exemption by itself creates no discrimination between footwear manufactured or produced in the State and imported from outside. Even a small manufacturer in the State must fulfil the conditions laid down by the notification in question before he can claim exemption from tax; in other words, he or a member of his family must also sell the hand-made shoes before he can claim the exemption. So must a small manufacturer outside the State if he wants to claim the benefit of the exemption. Unless he has travelled and brought the goods into another State, Article 304(a) does not apply; hence he cannot complain under that Article that he has to travel. It is worthy of note that the exemption relates to sales in the State and that is why a small manufacturer outside the State can claim no benefit of the exemption with regard to sales outside the State which are not taxable under thedo not think that this question falls for decision in the present appeal. The respondent in the present case is neither a servant nor an agent of the manufacturer. It is admitted that he is merely an importer and in his case nothing turns upon the omission of the word "himself" from the later notification.We also agree with the alternative submission of learned counsel for the appellants that if the notification dated January 28, 1956, is bad, then the respondent stands to gain nothing. If the exemption notification is struck down as invalid, that will not affect the validity of the notification of October 24, 1953, particularly of item 32 of Schedule 3 thereof. Learned counsel for the respondent has submitted that the two notifications must be read together and if the exemption goes, the notification of October 24, 1953, issued under section 5 of the Act must also go. We are unable to agree. The notification of October 24, 1953, fixes the point of sale at which the tax is to be imposed. The rate of tax is fixed by section 5 of the Act. There is no reason why the notification dated October 24, 1953, should fall with the notification dated January 28, 1956, which was issued under section 4(3) of the Act. The principle laid down by this Court in Ram Narain Sons Ltd. v. Assistant Commissioner of Sales Tax ([1955] 2 S.C.R. 483; 6 S.T.C. 627), that where an assessment consists of a single undivided sum in respect of the totality of the property treated as assessable, the wrongful inclusion in it of certain items of property which by virtue of a provision of law were expressly exempted from taxation, renders the assessment invalid in toto, will not apply in the present case for the simple reason that there is no wrongful inclusion of any item in the assessment order. If the exemption goes, then the respondent has been rightly assessed on his total turnover. It is only when the respondent is entitled to the exemption claimed that he can say that the assessment is bad and must be quashed. The respondent can claim the exemption only if the interpretation put by the High Court on the notification dated January 28, 1956, is accepted as correct. If that interpretation is not correct, then this appeal must be allowed even if the notification is bad by reason of the provisions of Article 304(a) of the Constitution. | 1 | 3,396 | 1,294 | ### 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 order of the High Court quashing the assessment will be erroneous.We now proceed to consider these alternative submissions of learned counsel for the appellants. We do not think that the notification dated January 28, 1956, makes any such discrimination between footwear manufactured or produced in the State of Madhya Pradesh and footwear imported from other States as is prohibited by Article 304(a) of the Constitution.10. We have already pointed out that the exemption granted by the notification in question depends on the fulfilment of three conditions and all the three conditions are equally applicable to footwear manufactured or produced in the State and footwear imported from other States. It is obvious that the exemption is for the protection and benefit of small manufacturers who make hand-made shoes of small value and who may be unable to compete with large-scale manufacturers of footwear made on machines. Such a classification in the interests of small manufacturers has often been made and upheld by this Court. (See Orient Weaving Mills (P.) Ltd. v. The Union of India (Petition No. 110 of 1961 decided on February 28, 1962) and The British India Corporation Ltd. v. The Collector of Central Excise, Allahabad (Petition No. 94 of 1955 decided on August 20, 1962)).11. In the course of his arguments learned counsel for the respondent has first supported the interpretation put on the notification by the High Court. That question we have already dealt with earlier in this judgment. Learned counsel for the respondent has then submitted that the discrimination arises in the following way. He points out that a small manufacturer outside the State has to travel into the State and sell hand-made shoes there in order to get the benefit of the exemption, whereas a small manufacturer in the State has not to travel anywhere in order to get the benefit of the exemption. This, learned counsel has submitted, results in such discrimination as is forbidden by Article 304(a) of the Constitution. We do not agree. The argument of learned counsel for the respondent is really an argument of inconvenience. The exemption by itself creates no discrimination between footwear manufactured or produced in the State and imported from outside. Even a small manufacturer in the State must fulfil the conditions laid down by the notification in question before he can claim exemption from tax; in other words, he or a member of his family must also sell the hand-made shoes before he can claim the exemption. So must a small manufacturer outside the State if he wants to claim the benefit of the exemption. Unless he has travelled and brought the goods into another State, Article 304(a) does not apply; hence he cannot complain under that Article that he has to travel. It is worthy of note that the exemption relates to sales in the State and that is why a small manufacturer outside the State can claim no benefit of the exemption with regard to sales outside the State which are not taxable under the Act. It is necessary here to refer to one other point which has been urged by learned counsel for the respondent.12. Learned counsel has pointed out that the word "himself" used in the earlier notification of May 27, 1955, in connection with the word "manufacturer" has been omitted from the later notification of January 28, 1956, and he has contended that by reason of the omission of the word "himself" the benefit of the later notification may be available to a servant or an agent of the manufacturer. We do not think that this question falls for decision in the present appeal. The respondent in the present case is neither a servant nor an agent of the manufacturer. It is admitted that he is merely an importer and in his case nothing turns upon the omission of the word "himself" from the later notification.We also agree with the alternative submission of learned counsel for the appellants that if the notification dated January 28, 1956, is bad, then the respondent stands to gain nothing. If the exemption notification is struck down as invalid, that will not affect the validity of the notification of October 24, 1953, particularly of item 32 of Schedule 3 thereof. Learned counsel for the respondent has submitted that the two notifications must be read together and if the exemption goes, the notification of October 24, 1953, issued under section 5 of the Act must also go. We are unable to agree. The notification of October 24, 1953, fixes the point of sale at which the tax is to be imposed. The rate of tax is fixed by section 5 of the Act. There is no reason why the notification dated October 24, 1953, should fall with the notification dated January 28, 1956, which was issued under section 4(3) of the Act. The principle laid down by this Court in Ram Narain Sons Ltd. v. Assistant Commissioner of Sales Tax ([1955] 2 S.C.R. 483; 6 S.T.C. 627), that where an assessment consists of a single undivided sum in respect of the totality of the property treated as assessable, the wrongful inclusion in it of certain items of property which by virtue of a provision of law were expressly exempted from taxation, renders the assessment invalid in toto, will not apply in the present case for the simple reason that there is no wrongful inclusion of any item in the assessment order. If the exemption goes, then the respondent has been rightly assessed on his total turnover. It is only when the respondent is entitled to the exemption claimed that he can say that the assessment is bad and must be quashed. The respondent can claim the exemption only if the interpretation put by the High Court on the notification dated January 28, 1956, is accepted as correct. If that interpretation is not correct, then this appeal must be allowed even if the notification is bad by reason of the provisions of Article 304(a) of the Constitution.
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notification can have no reference to a sale outside the State. The High Court was in error when it said that it made no difference whether the sale was by the manufacturer within the State directly to the purchaser or whether the sale was by the manufacturer outside the State to the importer who then sold the shoes to the purchaser in the State. When a manufacturer sells shoes outside the State to an importer and the importer again sells shoes in the State, there are really two sales, one outside the State and one inside it. The sales outside the State are not taxable under the Act and the notification of January 28, 1956, has no reference to such sales. When the notification uses the expression "in case of sale by the manufacturer or a member of his family", it has reference to such sales as would come but for the exemption within item 32 of Schedule 3 of the notification dated October 24, 1953. If the interpretation put by the High Court is correct, then the practical effect will be to obliterate one of the conditions laid down in the notification, namely, that the sale, which is the taxable event, must be by the manufacturer or any member of his family. We do not think that the notification is capable of such an interpretation. All the three conditions laid down in the notification must be fulfilled before the exemption referred to therein can be claimed and we cannot, by interpretation, delete one of the conditions.On the question whether the notification contravenes Article 304(a) of the Constitution learned counsel for the appellants has canvassed before us the larger question that Article 304(a) has no reference to sales taxnow proceed to consider these alternative submissions of learned counsel for the appellants. We do not think that the notification dated January 28, 1956, makes any such discrimination between footwear manufactured or produced in the State of Madhya Pradesh and footwear imported from other States as is prohibited by Article 304(a) of the Constitution.We have already pointed out that the exemption granted by the notification in question depends on the fulfilment of three conditions and all the three conditions are equally applicable to footwear manufactured or produced in the State and footwear imported from other States. It is obvious that the exemption is for the protection and benefit of small manufacturers who make hand-made shoes of small value and who may be unable to compete with large-scale manufacturers of footwear made ondo not agree. The argument of learned counsel for the respondent is really an argument of inconvenience. The exemption by itself creates no discrimination between footwear manufactured or produced in the State and imported from outside. Even a small manufacturer in the State must fulfil the conditions laid down by the notification in question before he can claim exemption from tax; in other words, he or a member of his family must also sell the hand-made shoes before he can claim the exemption. So must a small manufacturer outside the State if he wants to claim the benefit of the exemption. Unless he has travelled and brought the goods into another State, Article 304(a) does not apply; hence he cannot complain under that Article that he has to travel. It is worthy of note that the exemption relates to sales in the State and that is why a small manufacturer outside the State can claim no benefit of the exemption with regard to sales outside the State which are not taxable under thedo not think that this question falls for decision in the present appeal. The respondent in the present case is neither a servant nor an agent of the manufacturer. It is admitted that he is merely an importer and in his case nothing turns upon the omission of the word "himself" from the later notification.We also agree with the alternative submission of learned counsel for the appellants that if the notification dated January 28, 1956, is bad, then the respondent stands to gain nothing. If the exemption notification is struck down as invalid, that will not affect the validity of the notification of October 24, 1953, particularly of item 32 of Schedule 3 thereof. Learned counsel for the respondent has submitted that the two notifications must be read together and if the exemption goes, the notification of October 24, 1953, issued under section 5 of the Act must also go. We are unable to agree. The notification of October 24, 1953, fixes the point of sale at which the tax is to be imposed. The rate of tax is fixed by section 5 of the Act. There is no reason why the notification dated October 24, 1953, should fall with the notification dated January 28, 1956, which was issued under section 4(3) of the Act. The principle laid down by this Court in Ram Narain Sons Ltd. v. Assistant Commissioner of Sales Tax ([1955] 2 S.C.R. 483; 6 S.T.C. 627), that where an assessment consists of a single undivided sum in respect of the totality of the property treated as assessable, the wrongful inclusion in it of certain items of property which by virtue of a provision of law were expressly exempted from taxation, renders the assessment invalid in toto, will not apply in the present case for the simple reason that there is no wrongful inclusion of any item in the assessment order. If the exemption goes, then the respondent has been rightly assessed on his total turnover. It is only when the respondent is entitled to the exemption claimed that he can say that the assessment is bad and must be quashed. The respondent can claim the exemption only if the interpretation put by the High Court on the notification dated January 28, 1956, is accepted as correct. If that interpretation is not correct, then this appeal must be allowed even if the notification is bad by reason of the provisions of Article 304(a) of the Constitution.
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Prithi Nath Vs. Birkha Nath & Another | whether a Chela or Chelas were in a position to succeed to the Guru, that question could be determined with reference to the position as it obtained at the time when the succession to the property of that Guru opened out and the only Chela or Chelas who could succeed to the property could be the Chelas of that Guru whose property was to devolve upon them.The Chelas of any earlier Guru, whatever their spiritual affinity may, could never be thought of in this connection. We are fortified in this conclusion by the events that happened in 1918. When Bhola Nath, the last representative of the line of Sehaj Nath died on 10th April, 1918, the only two persons who claimed to inherit his estate as on the extinction of his line and the devolution of succession to the surviving lines were Pancham Nath and Sandhiya Nath.Phul Nath, the Guru of Respondent 1 was then alive and if propinquity of relationship in this spiritual descent which we are concerned with was the criterion of the right to inheritance. Phul Nath was certainly nearer in relationship than Sandhiya Nath and he could have claimed to inherit the property of Bhola Nath to the extent of the 1/2 share therein along with Pancham Nath.No such claim was, however, made by Phul Nath and Sandhiya Nath, as the representative of the line of Maya Nath was the only person who made such claim for inheritance and was recognised as the heir of Bhola Nath along with Pancham Nath when mutation came to be made.This goes to show that the succession from Guru to Chela only means the devolution of property from the last representative of the line to his Chela and when one talks of the succession from one Chela, on his death, to another Chela, it is also to another Chela of the Guru who is the last representative of the line. When one talks similarly of the extinction of the line, it only means that when the last representative of that particular line dies without leaving a Chela or Chelas or a Gurbhai who could succeed to his estate that line becomes extinct and one has not got to go backwards in order to ascertain whether there is any Chela of any Guru in that line at all surviving.We are therefore of the opinion that on the death of Sandhiya Nath, his Chelas Shanker Nath, Hardwari Nath and Badlu Nath succeed to the properties left by him one after the other and that when Badlu Nath died, there was neither his Chela or any Gurbhai of his who could succeed to the properties with the result that there was no. succession possible in that line from Guru to Chela and the line became extinct.11. It was, however, urged by Mr. Achhru Ram that unless the Appellant proved that when Bhola Nath died on 10th April, 1918, there were Chelas existing in the line of Sehaj Nath & yet the line of Sehaj Nath was treated as extinct and the succession devolved upon Pancham Nath and Sandhiya Nath who represented the two surviving lines of Sahib Nath and Maya Nath, the second part of the rule of succession propounded by the Appellant could not be held proved.The answer to this contention was furnished by the District Judge, Delhi in his judgment when he observed that it was admitted that Sehaj Nath had three Chelas and it was improbable that the other two Chelas who did not succeed had no. Chela of their own; nor was it very probable that Sanwat Nath and Shiv Nath in turn had no. other Chelas apart from their own who actually succeeded.The evidence was that these Jogis had the habit of initiating several Chelas. Respondent 1 himself admitted that Naina Nath had as many as twenty Chelas and there was evidence of another witness also. It was, therefore, probable that the line of Sehaj Nath was taken to be extinct not because there was no. Chela but because the last Mahant i.e. Bhola Nath had no. Chela of his own nor was any Gurbhai of his nor a Chela of a Gurbhai.Another circumstance relied upon by the learned Dist. Judge in support of this position was that in the disputed line there were other Chelas actually living & one of them, Har Nath had given evidence as the witness of Respondent1. He was the Chela of Misri Nath and thus nearer in spiritual relationship to the last Mahant than Respondent 1 : yet Har Nath had never made any claim to the Gaddi that was now in dispute although if the case of Respondent 1 was well founded Har Nath was entitled to the Gaddi in preference to him.The reason could only have been that Har Nath knew that not being the Chela of the last Mahant nor the Chela of the Gurbhai he had no. claim.12. We are in accord with this reasoning adopted by the learned District Judge and we endorse the conclusion to which he reached after taking all these factors into consideration that the rule of succession propounded on behalf of the Appellant was the rule of succession governing these institutions, i. e., a Mahant is succeeded by his Chela or his Gurbhai or the Chela of that Gurbhai and failing such claimants the line is deemed extinct and succession goes to the representative of the other line.13. This is sufficient to dispose of the Appeal and we need not discuss the other points which were adverted to in the judgment of the Letters Patent Bench. On a consideration of all the circumstances of the case we have come to the conclusion that there was no. vagueness or indefiniteness in the rule of succession propounded by the Appellant in paras 4 and 6 of the plaint, that the custom propounded therein has been established by the Appellant and the conclusion which was reached by the Letters Patent Bench to the contrary was incorrect. | 1[ds]8. It may be observed at the outset that Respondent 1 failed to prove the rule of succession which he set out in para 4 of his written statement and the finding reached by the trial Court, in this behalf that there has never been any election to the office of Mahant in these institutions was not challenged in the Court of the District Judge, Delhi, nor before the High Court.Mr. Achhru Ram appearing before us for Respondent 1 also did not challenge that finding with the result that contention must be taken as negatived. The Appellant has, however, got to succeed on the strength of his own title and not on the infirmity of that of Respondent 1 and he has, therefore, got to establish the rule of succession, propounded by him in paras 4 and 6 of the plaint.The elective principle having been negatived, it can be safely assumed that the succession to the estate in these lines of descent from Balak Nath was hereditary and it devolved from Guru tofindings are sufficient to establish the first part of the rule of succession propounded by the Appellant, viz, that succession devolves from Guru to Chela and if one Chela does not survive then it devolves upon the other Chela, meaning thereby the other Chela of the last Mahant who would thus be the Gurbhai of the Chela who died.The succession would thus be in the line of descent from the last Mahant who was the representative of the particular line qua whom it would be determined whether his Chela or Chelas succeed to his property. This position is supported by what happened in the case of succession to the property of Pancham Nath in the line of Sahibextinction of a line could take place only once and such occurrences would be very rare. Under these circumstances, even one instance of that type would be enough to establish the rule of succession asLetters Patent Benchs finding against the Appellant rested mainly on the construction which it put on the wording of para 6 of the plaint and the Court was impressed by the fact that there was some confusion in the drafting of this paragraph and it did not accept the contention urged by the Advocate of the Appellant that that confusion was clarified in the other paragraphs of the plaint.We are, however, unable to accept this reasoning of the Letters Patent Bench. If the succession was from Guru to Chela and the question was whether a Chela or Chelas were in a position to succeed to the Guru, that question could be determined with reference to the position as it obtained at the time when the succession to the property of that Guru opened out and the only Chela or Chelas who could succeed to the property could be the Chelas of that Guru whose property was to devolve upon them.The Chelas of any earlier Guru, whatever their spiritual affinity may, could never be thought of in this connection. We are fortified in this conclusion by the events that happened in 1918. When Bhola Nath, the last representative of the line of Sehaj Nath died on 10th April, 1918, the only two persons who claimed to inherit his estate as on the extinction of his line and the devolution of succession to the surviving lines were Pancham Nath and Sandhiyagoes to show that the succession from Guru to Chela only means the devolution of property from the last representative of the line to his Chela and when one talks of the succession from one Chela, on his death, to another Chela, it is also to another Chela of the Guru who is the last representative of the line. When one talks similarly of the extinction of the line, it only means that when the last representative of that particular line dies without leaving a Chela or Chelas or a Gurbhai who could succeed to his estate that line becomes extinct and one has not got to go backwards in order to ascertain whether there is any Chela of any Guru in that line at all surviving.We are therefore of the opinion that on the death of Sandhiya Nath, his Chelas Shanker Nath, Hardwari Nath and Badlu Nath succeed to the properties left by him one after the other and that when Badlu Nath died, there was neither his Chela or any Gurbhai of his who could succeed to the properties with the result that there was no. succession possible in that line from Guru to Chela and the line becameanswer to this contention was furnished by the District Judge, Delhi in his judgment when he observed that it was admitted that Sehaj Nath had three Chelas and it was improbable that the other two Chelas who did not succeed had no. Chela of their own; nor was it very probable that Sanwat Nath and Shiv Nath in turn had no. other Chelas apart from their own who actually succeeded.The evidence was that these Jogis had the habit of initiating several Chelas. Respondent 1 himself admitted that Naina Nath had as many as twenty Chelas and there was evidence of another witness also. It was, therefore, probable that the line of Sehaj Nath was taken to be extinct not because there was no. Chela but because the last Mahant i.e. Bhola Nath had no. Chela of his own nor was any Gurbhai of his nor a Chela of a Gurbhai.Another circumstance relied upon by the learned Dist. Judge in support of this position was that in the disputed line there were other Chelas actually living & one of them, Har Nath had given evidence as the witness ofHe was the Chela of Misri Nath and thus nearer in spiritual relationship to the last Mahant than Respondent 1 : yet Har Nath had never made any claim to the Gaddi that was now in dispute although if the case of Respondent 1 was well founded Har Nath was entitled to the Gaddi in preference to him.The reason could only have been that Har Nath knew that not being the Chela of the last Mahant nor the Chela of the Gurbhai he had no. claim.We are in accord with this reasoning adopted by the learned District Judge and we endorse the conclusion to which he reached after taking all these factors into consideration that the rule of succession propounded on behalf of the Appellant was the rule of succession governing these institutions, i. e., a Mahant is succeeded by his Chela or his Gurbhai or the Chela of that Gurbhai and failing such claimants the line is deemed extinct and succession goes to the representative of the other line.This is sufficient to dispose of the Appeal and we need not discuss the other points which were adverted to in the judgment of the Letters Patent Bench. On a consideration of all the circumstances of the case we have come to the conclusion that there was no. vagueness or indefiniteness in the rule of succession propounded by the Appellant in paras 4 and 6 of the plaint, that the custom propounded therein has been established by the Appellant and the conclusion which was reached by the Letters Patent Bench to the contrary was incorrect. | 1 | 3,915 | 1,274 | ### 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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whether a Chela or Chelas were in a position to succeed to the Guru, that question could be determined with reference to the position as it obtained at the time when the succession to the property of that Guru opened out and the only Chela or Chelas who could succeed to the property could be the Chelas of that Guru whose property was to devolve upon them.The Chelas of any earlier Guru, whatever their spiritual affinity may, could never be thought of in this connection. We are fortified in this conclusion by the events that happened in 1918. When Bhola Nath, the last representative of the line of Sehaj Nath died on 10th April, 1918, the only two persons who claimed to inherit his estate as on the extinction of his line and the devolution of succession to the surviving lines were Pancham Nath and Sandhiya Nath.Phul Nath, the Guru of Respondent 1 was then alive and if propinquity of relationship in this spiritual descent which we are concerned with was the criterion of the right to inheritance. Phul Nath was certainly nearer in relationship than Sandhiya Nath and he could have claimed to inherit the property of Bhola Nath to the extent of the 1/2 share therein along with Pancham Nath.No such claim was, however, made by Phul Nath and Sandhiya Nath, as the representative of the line of Maya Nath was the only person who made such claim for inheritance and was recognised as the heir of Bhola Nath along with Pancham Nath when mutation came to be made.This goes to show that the succession from Guru to Chela only means the devolution of property from the last representative of the line to his Chela and when one talks of the succession from one Chela, on his death, to another Chela, it is also to another Chela of the Guru who is the last representative of the line. When one talks similarly of the extinction of the line, it only means that when the last representative of that particular line dies without leaving a Chela or Chelas or a Gurbhai who could succeed to his estate that line becomes extinct and one has not got to go backwards in order to ascertain whether there is any Chela of any Guru in that line at all surviving.We are therefore of the opinion that on the death of Sandhiya Nath, his Chelas Shanker Nath, Hardwari Nath and Badlu Nath succeed to the properties left by him one after the other and that when Badlu Nath died, there was neither his Chela or any Gurbhai of his who could succeed to the properties with the result that there was no. succession possible in that line from Guru to Chela and the line became extinct.11. It was, however, urged by Mr. Achhru Ram that unless the Appellant proved that when Bhola Nath died on 10th April, 1918, there were Chelas existing in the line of Sehaj Nath & yet the line of Sehaj Nath was treated as extinct and the succession devolved upon Pancham Nath and Sandhiya Nath who represented the two surviving lines of Sahib Nath and Maya Nath, the second part of the rule of succession propounded by the Appellant could not be held proved.The answer to this contention was furnished by the District Judge, Delhi in his judgment when he observed that it was admitted that Sehaj Nath had three Chelas and it was improbable that the other two Chelas who did not succeed had no. Chela of their own; nor was it very probable that Sanwat Nath and Shiv Nath in turn had no. other Chelas apart from their own who actually succeeded.The evidence was that these Jogis had the habit of initiating several Chelas. Respondent 1 himself admitted that Naina Nath had as many as twenty Chelas and there was evidence of another witness also. It was, therefore, probable that the line of Sehaj Nath was taken to be extinct not because there was no. Chela but because the last Mahant i.e. Bhola Nath had no. Chela of his own nor was any Gurbhai of his nor a Chela of a Gurbhai.Another circumstance relied upon by the learned Dist. Judge in support of this position was that in the disputed line there were other Chelas actually living & one of them, Har Nath had given evidence as the witness of Respondent1. He was the Chela of Misri Nath and thus nearer in spiritual relationship to the last Mahant than Respondent 1 : yet Har Nath had never made any claim to the Gaddi that was now in dispute although if the case of Respondent 1 was well founded Har Nath was entitled to the Gaddi in preference to him.The reason could only have been that Har Nath knew that not being the Chela of the last Mahant nor the Chela of the Gurbhai he had no. claim.12. We are in accord with this reasoning adopted by the learned District Judge and we endorse the conclusion to which he reached after taking all these factors into consideration that the rule of succession propounded on behalf of the Appellant was the rule of succession governing these institutions, i. e., a Mahant is succeeded by his Chela or his Gurbhai or the Chela of that Gurbhai and failing such claimants the line is deemed extinct and succession goes to the representative of the other line.13. This is sufficient to dispose of the Appeal and we need not discuss the other points which were adverted to in the judgment of the Letters Patent Bench. On a consideration of all the circumstances of the case we have come to the conclusion that there was no. vagueness or indefiniteness in the rule of succession propounded by the Appellant in paras 4 and 6 of the plaint, that the custom propounded therein has been established by the Appellant and the conclusion which was reached by the Letters Patent Bench to the contrary was incorrect.
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thereby the other Chela of the last Mahant who would thus be the Gurbhai of the Chela who died.The succession would thus be in the line of descent from the last Mahant who was the representative of the particular line qua whom it would be determined whether his Chela or Chelas succeed to his property. This position is supported by what happened in the case of succession to the property of Pancham Nath in the line of Sahibextinction of a line could take place only once and such occurrences would be very rare. Under these circumstances, even one instance of that type would be enough to establish the rule of succession asLetters Patent Benchs finding against the Appellant rested mainly on the construction which it put on the wording of para 6 of the plaint and the Court was impressed by the fact that there was some confusion in the drafting of this paragraph and it did not accept the contention urged by the Advocate of the Appellant that that confusion was clarified in the other paragraphs of the plaint.We are, however, unable to accept this reasoning of the Letters Patent Bench. If the succession was from Guru to Chela and the question was whether a Chela or Chelas were in a position to succeed to the Guru, that question could be determined with reference to the position as it obtained at the time when the succession to the property of that Guru opened out and the only Chela or Chelas who could succeed to the property could be the Chelas of that Guru whose property was to devolve upon them.The Chelas of any earlier Guru, whatever their spiritual affinity may, could never be thought of in this connection. We are fortified in this conclusion by the events that happened in 1918. When Bhola Nath, the last representative of the line of Sehaj Nath died on 10th April, 1918, the only two persons who claimed to inherit his estate as on the extinction of his line and the devolution of succession to the surviving lines were Pancham Nath and Sandhiyagoes to show that the succession from Guru to Chela only means the devolution of property from the last representative of the line to his Chela and when one talks of the succession from one Chela, on his death, to another Chela, it is also to another Chela of the Guru who is the last representative of the line. When one talks similarly of the extinction of the line, it only means that when the last representative of that particular line dies without leaving a Chela or Chelas or a Gurbhai who could succeed to his estate that line becomes extinct and one has not got to go backwards in order to ascertain whether there is any Chela of any Guru in that line at all surviving.We are therefore of the opinion that on the death of Sandhiya Nath, his Chelas Shanker Nath, Hardwari Nath and Badlu Nath succeed to the properties left by him one after the other and that when Badlu Nath died, there was neither his Chela or any Gurbhai of his who could succeed to the properties with the result that there was no. succession possible in that line from Guru to Chela and the line becameanswer to this contention was furnished by the District Judge, Delhi in his judgment when he observed that it was admitted that Sehaj Nath had three Chelas and it was improbable that the other two Chelas who did not succeed had no. Chela of their own; nor was it very probable that Sanwat Nath and Shiv Nath in turn had no. other Chelas apart from their own who actually succeeded.The evidence was that these Jogis had the habit of initiating several Chelas. Respondent 1 himself admitted that Naina Nath had as many as twenty Chelas and there was evidence of another witness also. It was, therefore, probable that the line of Sehaj Nath was taken to be extinct not because there was no. Chela but because the last Mahant i.e. Bhola Nath had no. Chela of his own nor was any Gurbhai of his nor a Chela of a Gurbhai.Another circumstance relied upon by the learned Dist. Judge in support of this position was that in the disputed line there were other Chelas actually living & one of them, Har Nath had given evidence as the witness ofHe was the Chela of Misri Nath and thus nearer in spiritual relationship to the last Mahant than Respondent 1 : yet Har Nath had never made any claim to the Gaddi that was now in dispute although if the case of Respondent 1 was well founded Har Nath was entitled to the Gaddi in preference to him.The reason could only have been that Har Nath knew that not being the Chela of the last Mahant nor the Chela of the Gurbhai he had no. claim.We are in accord with this reasoning adopted by the learned District Judge and we endorse the conclusion to which he reached after taking all these factors into consideration that the rule of succession propounded on behalf of the Appellant was the rule of succession governing these institutions, i. e., a Mahant is succeeded by his Chela or his Gurbhai or the Chela of that Gurbhai and failing such claimants the line is deemed extinct and succession goes to the representative of the other line.This is sufficient to dispose of the Appeal and we need not discuss the other points which were adverted to in the judgment of the Letters Patent Bench. On a consideration of all the circumstances of the case we have come to the conclusion that there was no. vagueness or indefiniteness in the rule of succession propounded by the Appellant in paras 4 and 6 of the plaint, that the custom propounded therein has been established by the Appellant and the conclusion which was reached by the Letters Patent Bench to the contrary was incorrect.
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Raju @ Devendra Choubey Vs. State of Chhatisgarh | that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime. They do not constitute substantive evidence. These parades are of the essentially governed by Section 162, Criminal Procedure Code. It is for this reason that the identification parades in this case seem to have been held under the supervision of a Magistrate. Keeping in view the purpose of identification parades the Magistrates holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error. They must, therefore, take intelligent interest in the proceedings, bearing in mind two considerations: (i) that the life and liberty of an accused may depend on their vigilance and caution and (ii) that justice should be done in the identification. Those proceeding should not make it impossible for the identifiers who, after all, have, as a rule, only fleeting glimpses of the person they are supposed to identify. Generally speaking, the Magistrate must make a note of every objection raised by an accused at the time of identification and the steps taken by them to ensure fairness to the accused, so that the court which is to judge the value of the identification evidence may take them into consideration in the appreciation of that evidence. The power to identify, it may be kept in view, varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seem to be of basic importance in the evaluation of identification. The persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible. The identification to be of value should also be held without much delay. The number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. The evidence as to identification deserves, therefore, to be subjected to a close and careful scrutiny by the Court…….” The observations of this Court undoubtedly lay down the correct law and we have no reason to doubt them. We, however, do not see how the observations help the appellants. In the present case, the child witness has been found to be reliable. His presence is not doubted, since he resided with the family for whom he worked. He had no axe to grind against any of the accused. He became the unfortunate witness of a gruesome murder and fearlessly identified the accused in Court. In his deposition he specified the details of the part which the accused played with reasonable particularity. In such a situation, it is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding, as observed by this Court in Budhsen’s case (supra). This Court has not laid down the requirement in general that all identification parades must be under the supervision of a Magistrate as in Budhsen’s case (supra). The learned counsel for the appellants also relied upon the Judgments of this Court in Subash and Shiv Kumar Vs. State of U.P. (1987) 3 SCC 331 , and Mohd. Abdul Hafeez Vs. State of Andhra Pradesh AIR 1983 SC 367 . The facts and circumstances of the cases are however different and it is not necessary to consider those cases in detail while dealing with the present case. Suffice it to say that those cases do not create any doubt as regards the conviction in this case. 20. Mr. P.C. Agrawala, learned senior counsel for the appellant Mahesh (accused no. 3), vehemently submitted that this accused ought not to have been convicted under Section 302 with the aid of Sections 34 and 120 (B) of IPC. In particular it was submitted that the role attributed to the accused was that he merely stood outside the house. He did not even act as a guard because when the witness Anil Kumar (PW-21) came to the house, he was not even stopped by the accused from entering the house. The learned counsel for Mahesh (accused no.3) relied on several decisions of this Court in Suresh Sakharam Nangare Vs. State of Maharashtra (2012) 9 SCC 249 , Jai Bhagwan Vs. State of Haryana AIR 1999 SC 1083 and Ramashish Yadav Vs. State of Bihar (1999) 8 SCC 555. 21. It is settled law that common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in, it must go to the accused vide Baliya Vs. State of M.P. (2012) 9 SCC 696. 22. On a careful conspectus of the facts and the law, we are of the view that the prosecution has failed to prove the guilt of Mahesh beyond reasonable doubt. There is no evidence of his having played any part in the crime. He was merely seen by the witness as standing outside the house when the witness came home. Mahesh did not even act as a guard; he did not prevent Anil Kumar (PW-21) from entering the house. There is no evidence of the formation or sharing of any common intention with the other accused. There is no reference to a third person in the FIR; no evidence that he came with the other accused or left with them. No weapon was seized from him, nor was any property connected with the crime, seized. Having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict Mahesh of the offence of murder with the aid of Sections 34 and 120(B). | 1[ds]. This deposition clearly implicates accused Nos. 1, 2 and 4. The picture that emerges is that Shashi Tripathi caused Bhavna to be killed and for this purpose engaged Chandra Prakash (accused No. 2) and Raju @ Devendra Choubey (accused No. 4) by paying them money. She also seems to have had a scuffle with Bhavna, which is apparent from the fact that her hair was found in the grip of the deceased during investigation. It is obvious that accused nos. 2 and 4 did not enter the house to commit a robbery and had a single mission, namely, to kill Bhavana. There is no evidence that they had any previous animosity with the deceased and appeared to have acted as contract killers.The prosecution has found it difficult to pinpoint the motive but Shashihusband Dr. Sharda Prasad Tripathi (PW-1) deposed before the Court that she tried to create a hindrance in the marriage of his son Jitendra since she wanted her daughter Abhilasha to marry him; however, he went ahead with the marriage of Jitendra to Bhavna, whereupon Shashi Tripathi remained silent.On a careful perusal of the deposition of this child witness, we have not found any reason why he would have lied. He was brought to the house by Shashi Tripathi (accused), who apparently took care of him and sent to school and gave him food and residence. He had no grouse against her neither any ulterior motive in identifying the accused, who were not acquainted to him. There was no reason for the sole eye witness - Anil (PW-21) to implicate anybody falsely. Merely because he has been some time in the company of the police at the police station his testimony cannot be discarded as untrue. The incident occurred within the four walls of the house of the accused - Shashi Tripathi and the only witness was the boy –Anil (PW-21). His statement that the accused Chandra Prakash attacked the deceased is corroborated by the recovery of knife from Chandra Prakash. It must be remembered that the boy comes from a rural back ground and was 13 years of age when the incident occurred. His presence in the house is entirely natural and we have no reason to discard hisis not possible for us to accept this contention. Mahesh and Chandra Prakash were arrested on 29.11.2003, their identification parade was conducted on 13.12.2003 - (within a fortnight or so). The accused Devendra Kumar was arrested on 22.12.2003 and his identification parade was conducted on 26.12.2003- (within four days). There is no evidence on record to show that the child witness had an opportunity to see and study the features of the accused between their arrest and test identification parade to enable a tutored identification. In any case, the period between the arrest and the identification parade was not large enough to constitute inordinate delay.observations of this Court undoubtedly lay down the correct law and we have no reason to doubt them. We, however, do not see how the observations help the appellants. In the present case, the child witness has been found to be reliable. His presence is not doubted, since he resided with the family for whom he worked. He had no axe to grind against any of the accused. He became the unfortunate witness of a gruesome murder and fearlessly identified the accused in Court. In his deposition he specified the details of the part which the accused played with reasonable particularity. In such a situation, it is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding, as observed by this Court incase (supra). This Court has not laid down the requirement in general that all identification parades must be under the supervision of a Magistrate as incase (supra). The learned counsel for the appellants also relied upon the Judgments of this Court in Subash and Shiv Kumar Vs. State of U.P. (1987) 3 SCC 331 , and Mohd. Abdul Hafeez Vs. State of Andhra Pradesh AIR 1983 SC 367 . The facts and circumstances of the cases are however different and it is not necessary to consider those cases in detail while dealing with the present case. Suffice it to say that those cases do not create any doubt as regards the conviction in this case.It is settled law that common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in, it must go to the accused vide Baliya Vs. State of M.P. (2012) 9 SCC 696. 22. On a careful conspectus of the facts and the law, we are of the view that the prosecution has failed to prove the guilt of Mahesh beyond reasonable doubt. There is no evidence of his having played any part in the crime. He was merely seen by the witness as standing outside the house when the witness came home. Mahesh did not even act as a guard; he did not prevent Anil Kumar (PW-21) from entering the house. There is no evidence of the formation or sharing of any common intention with the other accused. There is no reference to a third person in the FIR; no evidence that he came with the other accused or left with them. No weapon was seized from him, nor was any property connected with the crime, seized. Having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict Mahesh of the offence of murder with the aid of Sections 34 and 120(B). | 1 | 3,775 | 1,055 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime. They do not constitute substantive evidence. These parades are of the essentially governed by Section 162, Criminal Procedure Code. It is for this reason that the identification parades in this case seem to have been held under the supervision of a Magistrate. Keeping in view the purpose of identification parades the Magistrates holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error. They must, therefore, take intelligent interest in the proceedings, bearing in mind two considerations: (i) that the life and liberty of an accused may depend on their vigilance and caution and (ii) that justice should be done in the identification. Those proceeding should not make it impossible for the identifiers who, after all, have, as a rule, only fleeting glimpses of the person they are supposed to identify. Generally speaking, the Magistrate must make a note of every objection raised by an accused at the time of identification and the steps taken by them to ensure fairness to the accused, so that the court which is to judge the value of the identification evidence may take them into consideration in the appreciation of that evidence. The power to identify, it may be kept in view, varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seem to be of basic importance in the evaluation of identification. The persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible. The identification to be of value should also be held without much delay. The number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. The evidence as to identification deserves, therefore, to be subjected to a close and careful scrutiny by the Court…….” The observations of this Court undoubtedly lay down the correct law and we have no reason to doubt them. We, however, do not see how the observations help the appellants. In the present case, the child witness has been found to be reliable. His presence is not doubted, since he resided with the family for whom he worked. He had no axe to grind against any of the accused. He became the unfortunate witness of a gruesome murder and fearlessly identified the accused in Court. In his deposition he specified the details of the part which the accused played with reasonable particularity. In such a situation, it is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding, as observed by this Court in Budhsen’s case (supra). This Court has not laid down the requirement in general that all identification parades must be under the supervision of a Magistrate as in Budhsen’s case (supra). The learned counsel for the appellants also relied upon the Judgments of this Court in Subash and Shiv Kumar Vs. State of U.P. (1987) 3 SCC 331 , and Mohd. Abdul Hafeez Vs. State of Andhra Pradesh AIR 1983 SC 367 . The facts and circumstances of the cases are however different and it is not necessary to consider those cases in detail while dealing with the present case. Suffice it to say that those cases do not create any doubt as regards the conviction in this case. 20. Mr. P.C. Agrawala, learned senior counsel for the appellant Mahesh (accused no. 3), vehemently submitted that this accused ought not to have been convicted under Section 302 with the aid of Sections 34 and 120 (B) of IPC. In particular it was submitted that the role attributed to the accused was that he merely stood outside the house. He did not even act as a guard because when the witness Anil Kumar (PW-21) came to the house, he was not even stopped by the accused from entering the house. The learned counsel for Mahesh (accused no.3) relied on several decisions of this Court in Suresh Sakharam Nangare Vs. State of Maharashtra (2012) 9 SCC 249 , Jai Bhagwan Vs. State of Haryana AIR 1999 SC 1083 and Ramashish Yadav Vs. State of Bihar (1999) 8 SCC 555. 21. It is settled law that common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in, it must go to the accused vide Baliya Vs. State of M.P. (2012) 9 SCC 696. 22. On a careful conspectus of the facts and the law, we are of the view that the prosecution has failed to prove the guilt of Mahesh beyond reasonable doubt. There is no evidence of his having played any part in the crime. He was merely seen by the witness as standing outside the house when the witness came home. Mahesh did not even act as a guard; he did not prevent Anil Kumar (PW-21) from entering the house. There is no evidence of the formation or sharing of any common intention with the other accused. There is no reference to a third person in the FIR; no evidence that he came with the other accused or left with them. No weapon was seized from him, nor was any property connected with the crime, seized. Having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict Mahesh of the offence of murder with the aid of Sections 34 and 120(B).
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. This deposition clearly implicates accused Nos. 1, 2 and 4. The picture that emerges is that Shashi Tripathi caused Bhavna to be killed and for this purpose engaged Chandra Prakash (accused No. 2) and Raju @ Devendra Choubey (accused No. 4) by paying them money. She also seems to have had a scuffle with Bhavna, which is apparent from the fact that her hair was found in the grip of the deceased during investigation. It is obvious that accused nos. 2 and 4 did not enter the house to commit a robbery and had a single mission, namely, to kill Bhavana. There is no evidence that they had any previous animosity with the deceased and appeared to have acted as contract killers.The prosecution has found it difficult to pinpoint the motive but Shashihusband Dr. Sharda Prasad Tripathi (PW-1) deposed before the Court that she tried to create a hindrance in the marriage of his son Jitendra since she wanted her daughter Abhilasha to marry him; however, he went ahead with the marriage of Jitendra to Bhavna, whereupon Shashi Tripathi remained silent.On a careful perusal of the deposition of this child witness, we have not found any reason why he would have lied. He was brought to the house by Shashi Tripathi (accused), who apparently took care of him and sent to school and gave him food and residence. He had no grouse against her neither any ulterior motive in identifying the accused, who were not acquainted to him. There was no reason for the sole eye witness - Anil (PW-21) to implicate anybody falsely. Merely because he has been some time in the company of the police at the police station his testimony cannot be discarded as untrue. The incident occurred within the four walls of the house of the accused - Shashi Tripathi and the only witness was the boy –Anil (PW-21). His statement that the accused Chandra Prakash attacked the deceased is corroborated by the recovery of knife from Chandra Prakash. It must be remembered that the boy comes from a rural back ground and was 13 years of age when the incident occurred. His presence in the house is entirely natural and we have no reason to discard hisis not possible for us to accept this contention. Mahesh and Chandra Prakash were arrested on 29.11.2003, their identification parade was conducted on 13.12.2003 - (within a fortnight or so). The accused Devendra Kumar was arrested on 22.12.2003 and his identification parade was conducted on 26.12.2003- (within four days). There is no evidence on record to show that the child witness had an opportunity to see and study the features of the accused between their arrest and test identification parade to enable a tutored identification. In any case, the period between the arrest and the identification parade was not large enough to constitute inordinate delay.observations of this Court undoubtedly lay down the correct law and we have no reason to doubt them. We, however, do not see how the observations help the appellants. In the present case, the child witness has been found to be reliable. His presence is not doubted, since he resided with the family for whom he worked. He had no axe to grind against any of the accused. He became the unfortunate witness of a gruesome murder and fearlessly identified the accused in Court. In his deposition he specified the details of the part which the accused played with reasonable particularity. In such a situation, it is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding, as observed by this Court incase (supra). This Court has not laid down the requirement in general that all identification parades must be under the supervision of a Magistrate as incase (supra). The learned counsel for the appellants also relied upon the Judgments of this Court in Subash and Shiv Kumar Vs. State of U.P. (1987) 3 SCC 331 , and Mohd. Abdul Hafeez Vs. State of Andhra Pradesh AIR 1983 SC 367 . The facts and circumstances of the cases are however different and it is not necessary to consider those cases in detail while dealing with the present case. Suffice it to say that those cases do not create any doubt as regards the conviction in this case.It is settled law that common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in, it must go to the accused vide Baliya Vs. State of M.P. (2012) 9 SCC 696. 22. On a careful conspectus of the facts and the law, we are of the view that the prosecution has failed to prove the guilt of Mahesh beyond reasonable doubt. There is no evidence of his having played any part in the crime. He was merely seen by the witness as standing outside the house when the witness came home. Mahesh did not even act as a guard; he did not prevent Anil Kumar (PW-21) from entering the house. There is no evidence of the formation or sharing of any common intention with the other accused. There is no reference to a third person in the FIR; no evidence that he came with the other accused or left with them. No weapon was seized from him, nor was any property connected with the crime, seized. Having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict Mahesh of the offence of murder with the aid of Sections 34 and 120(B).
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Imax Corporation Vs. M/S E-City Entertainment (I) P.Ltd | 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 | 4,318 | 1,040 | ### Instruction:
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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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Mcdowell and Company Limited Vs. Sales Tax Officer, Sherthallay | the condition that the seller should produce before the assessing authority within three months from the end of the assessment year, a declaration duly signed by the purchaser in the form appended to the notification. A similar notification was issued on February 23, 1963, in respect of the sales to dealers in Pondicherry.The appellant produced declarations before the respondent in respect of the sales to dealers in Goa but they were not produced within the time prescribed in the notification. It did not produce any declaration in respect of its sales to dealers in Pondicherry. Hence it did not comply with the conditions laid down in the notifications. The provisions of sub-sections (3) and (4) of section 8 could not be satisfied in the case of sales to dealers in Pondicherry as the Act had not been extended to that territory during that assessment year and in the case of sales to dealers in Goa as the relevant statutory machinery had not been established. Hence the respondent assessed the appellant at 40 per cent. on the turnover relating to sales mentioned earlier.5. Aggrieved by the assessment orders made against it by the respondent, the appellant moved the High Court of Kerala under article 226 of the Constitution to quash the assessment order. A learned single Judge of the Kerala High Court quashed the assessment order on the sole ground that Goa and Pondicherry were not States. In coming to that conclusion, the learned Judge clearly overlooked the provisions of article 367 of the Constitution read with section 3(58) of the Kerala General Clauses Act. The learned single Judge did not decide any of the other contentions raised in the writ petition.6. Aggrieved by the order of the single Judge, the respondent took up the matter in appeal to a Division Bench of the Kerala High Court. The Division Bench reversed the decision of the learned single Judge. It repelled the contention of the appellant that Goa and Pondicherry were not States as contemplated by the Act. That contention was not pressed before us.7. Before the Division Bench, it was contended on behalf of the appellant that the notifications issued under section 8(5) were invalid as the State Government was not competent to fix a time-limit for the production of the prescribed declarations. The High Court rejected that contention. The same contention was repeated before us. In support of that contention reliance was placed on the decision of this court in Sales Tax Officer, Ponkunnam v. K. I. Abraham ([1967] 20 S.T.C. 367 (S.C.).), wherein this court held that the third proviso to rule 6(1) of the Central Sales Tax (Kerala) Rules, 1957, which provided that all declaration forms pending submission by dealers on May 2, 1960, shall be submitted not later than February 16, 1961, is ultra vires section 8(4) read with section 13(3) and (4) of the Act. This court held that it was the duty of the dealers to furnish the declarations in form C within reasonable time. In our judgment the High Court rightly held that the said decision has no application to the facts of this case. Therein this court was considering the declaration required to be produced under section 8(4). In that case the impugned rule was found to have gone beyond the provisions in section 8(4). The declarations that the appellant was required to produce were declarations prescribed by the notifications issued under section 8(5). Under that section the State Government was empowered to provide for hard cases which may not come within the scope of section 8(4). The notifications issued afforded certain concessions to the assessees. They did not restrict the rights of the assessees. But for those notifications dealers in Kerala who had sold goods to dealers in Goa and Pondicherry would have had to pay sales tax as provided in the State laws as it was not possible for them to take the benefit of section 8(4) for the reasons already mentioned. Section 8(5) specifically empowered the State Governments to grant any concession "subject to such conditions as it may think fit to impose". The appellant does not challenge the vires of section 8(5). If the notifications in question are struck down, the appellant will get no benefit. He will have still to pay tax under the State law.The contention that in view of the fact that the Act had not been extended to Pondicherry at the relevant time, compliance with the provisions of the Act in the case of sales to dealers in that place was impossible and consequently the dealers in Kerala cannot be penalised for sales admittedly in the course of inter-State trade has no basis in law. The rate of tax fixed under sub-section (1) of section 8 applied only to sale of goods of the description referred to in sub-section (3) to a registered dealer. In the case of sales which did not fall under sub-section (1), tax was payable at the rates prescribed in sub-section (2). Quite clearly sales to dealers in Pondicherry did not fall under sub-section (1). Therefore they are taxable under sub-section (2). It is true that difficulty had been created because of the fact that the Act was not extended to Pondicherry but such a difficulty confers no rights on the dealers. But then, the State of Kerala tried to get over that difficulty by issuing notifications under section 8(5). The appellant did not take the benefit afforded by those notifications. Hence he has only to blame himself.8. In the case of the sales to dealers in Goa, no doubt the appellant did produce the declarations in the prescribed form but those declarations were not produced within the time prescribed. The notifications issued prescribed that the declarations in question should be produced within the time prescribed therein. We have already held that those notifications were valid notifications. The appellant has suffered because of its own laches.9. We see no merit in any of the contentions advanced on behalf of the appellant.10. | 0[ds]In our judgment the High Court rightly held that the said decision has no application to the facts of this case. Therein this court was considering the declaration required to be produced under section 8(4). In that case the impugned rule was found to have gone beyond the provisions in section 8(4). The declarations that the appellant was required to produce were declarations prescribed by the notifications issued under section 8(5). Under that section the State Government was empowered to provide for hard cases which may not come within the scope of section 8(4). The notifications issued afforded certain concessions to the assessees. They did not restrict the rights of the assessees. But for those notifications dealers in Kerala who had sold goods to dealers in Goa and Pondicherry would have had to pay sales tax as provided in the State laws as it was not possible for them to take the benefit of section 8(4) for the reasons already mentioned. Section 8(5) specifically empowered the State Governments to grant any concession "subject to such conditions as it may think fit to impose". The appellant does not challenge the vires of section 8(5). If the notifications in question are struck down, the appellant will get no benefit. He will have still to pay tax under the State law.The contention that in view of the fact that the Act had not been extended to Pondicherry at the relevant time, compliance with the provisions of the Act in the case of sales to dealers in that place was impossible and consequently the dealers in Kerala cannot be penalised for sales admittedly in the course oftrade has no basis in law. The rate of tax fixed under(1) of section 8 applied only to sale of goods of the description referred to in(3) to a registered dealer. In the case of sales which did not fall under(1), tax was payable at the rates prescribed in(2). Quite clearly sales to dealers in Pondicherry did not fall under(1). Therefore they are taxable under(2). It is true that difficulty had been created because of the fact that the Act was not extended to Pondicherry but such a difficulty confers no rights on the dealers. But then, the State of Kerala tried to get over that difficulty by issuing notifications under section 8(5). The appellant did not take the benefit afforded by those notifications. Hence he has only to blamethe case of the sales to dealers in Goa, no doubt the appellant did produce the declarations in the prescribed form but those declarations were not produced within the time prescribed. The notifications issued prescribed that the declarations in question should be produced within the time prescribed therein. We have already held that those notifications were valid notifications. The appellant has suffered because of its ownsee no merit in any of the contentions advanced on behalf of the appellant. | 0 | 1,855 | 557 | ### Instruction:
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the condition that the seller should produce before the assessing authority within three months from the end of the assessment year, a declaration duly signed by the purchaser in the form appended to the notification. A similar notification was issued on February 23, 1963, in respect of the sales to dealers in Pondicherry.The appellant produced declarations before the respondent in respect of the sales to dealers in Goa but they were not produced within the time prescribed in the notification. It did not produce any declaration in respect of its sales to dealers in Pondicherry. Hence it did not comply with the conditions laid down in the notifications. The provisions of sub-sections (3) and (4) of section 8 could not be satisfied in the case of sales to dealers in Pondicherry as the Act had not been extended to that territory during that assessment year and in the case of sales to dealers in Goa as the relevant statutory machinery had not been established. Hence the respondent assessed the appellant at 40 per cent. on the turnover relating to sales mentioned earlier.5. Aggrieved by the assessment orders made against it by the respondent, the appellant moved the High Court of Kerala under article 226 of the Constitution to quash the assessment order. A learned single Judge of the Kerala High Court quashed the assessment order on the sole ground that Goa and Pondicherry were not States. In coming to that conclusion, the learned Judge clearly overlooked the provisions of article 367 of the Constitution read with section 3(58) of the Kerala General Clauses Act. The learned single Judge did not decide any of the other contentions raised in the writ petition.6. Aggrieved by the order of the single Judge, the respondent took up the matter in appeal to a Division Bench of the Kerala High Court. The Division Bench reversed the decision of the learned single Judge. It repelled the contention of the appellant that Goa and Pondicherry were not States as contemplated by the Act. That contention was not pressed before us.7. Before the Division Bench, it was contended on behalf of the appellant that the notifications issued under section 8(5) were invalid as the State Government was not competent to fix a time-limit for the production of the prescribed declarations. The High Court rejected that contention. The same contention was repeated before us. In support of that contention reliance was placed on the decision of this court in Sales Tax Officer, Ponkunnam v. K. I. Abraham ([1967] 20 S.T.C. 367 (S.C.).), wherein this court held that the third proviso to rule 6(1) of the Central Sales Tax (Kerala) Rules, 1957, which provided that all declaration forms pending submission by dealers on May 2, 1960, shall be submitted not later than February 16, 1961, is ultra vires section 8(4) read with section 13(3) and (4) of the Act. This court held that it was the duty of the dealers to furnish the declarations in form C within reasonable time. In our judgment the High Court rightly held that the said decision has no application to the facts of this case. Therein this court was considering the declaration required to be produced under section 8(4). In that case the impugned rule was found to have gone beyond the provisions in section 8(4). The declarations that the appellant was required to produce were declarations prescribed by the notifications issued under section 8(5). Under that section the State Government was empowered to provide for hard cases which may not come within the scope of section 8(4). The notifications issued afforded certain concessions to the assessees. They did not restrict the rights of the assessees. But for those notifications dealers in Kerala who had sold goods to dealers in Goa and Pondicherry would have had to pay sales tax as provided in the State laws as it was not possible for them to take the benefit of section 8(4) for the reasons already mentioned. Section 8(5) specifically empowered the State Governments to grant any concession "subject to such conditions as it may think fit to impose". The appellant does not challenge the vires of section 8(5). If the notifications in question are struck down, the appellant will get no benefit. He will have still to pay tax under the State law.The contention that in view of the fact that the Act had not been extended to Pondicherry at the relevant time, compliance with the provisions of the Act in the case of sales to dealers in that place was impossible and consequently the dealers in Kerala cannot be penalised for sales admittedly in the course of inter-State trade has no basis in law. The rate of tax fixed under sub-section (1) of section 8 applied only to sale of goods of the description referred to in sub-section (3) to a registered dealer. In the case of sales which did not fall under sub-section (1), tax was payable at the rates prescribed in sub-section (2). Quite clearly sales to dealers in Pondicherry did not fall under sub-section (1). Therefore they are taxable under sub-section (2). It is true that difficulty had been created because of the fact that the Act was not extended to Pondicherry but such a difficulty confers no rights on the dealers. But then, the State of Kerala tried to get over that difficulty by issuing notifications under section 8(5). The appellant did not take the benefit afforded by those notifications. Hence he has only to blame himself.8. In the case of the sales to dealers in Goa, no doubt the appellant did produce the declarations in the prescribed form but those declarations were not produced within the time prescribed. The notifications issued prescribed that the declarations in question should be produced within the time prescribed therein. We have already held that those notifications were valid notifications. The appellant has suffered because of its own laches.9. We see no merit in any of the contentions advanced on behalf of the appellant.10.
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### Explanation:
In our judgment the High Court rightly held that the said decision has no application to the facts of this case. Therein this court was considering the declaration required to be produced under section 8(4). In that case the impugned rule was found to have gone beyond the provisions in section 8(4). The declarations that the appellant was required to produce were declarations prescribed by the notifications issued under section 8(5). Under that section the State Government was empowered to provide for hard cases which may not come within the scope of section 8(4). The notifications issued afforded certain concessions to the assessees. They did not restrict the rights of the assessees. But for those notifications dealers in Kerala who had sold goods to dealers in Goa and Pondicherry would have had to pay sales tax as provided in the State laws as it was not possible for them to take the benefit of section 8(4) for the reasons already mentioned. Section 8(5) specifically empowered the State Governments to grant any concession "subject to such conditions as it may think fit to impose". The appellant does not challenge the vires of section 8(5). If the notifications in question are struck down, the appellant will get no benefit. He will have still to pay tax under the State law.The contention that in view of the fact that the Act had not been extended to Pondicherry at the relevant time, compliance with the provisions of the Act in the case of sales to dealers in that place was impossible and consequently the dealers in Kerala cannot be penalised for sales admittedly in the course oftrade has no basis in law. The rate of tax fixed under(1) of section 8 applied only to sale of goods of the description referred to in(3) to a registered dealer. In the case of sales which did not fall under(1), tax was payable at the rates prescribed in(2). Quite clearly sales to dealers in Pondicherry did not fall under(1). Therefore they are taxable under(2). It is true that difficulty had been created because of the fact that the Act was not extended to Pondicherry but such a difficulty confers no rights on the dealers. But then, the State of Kerala tried to get over that difficulty by issuing notifications under section 8(5). The appellant did not take the benefit afforded by those notifications. Hence he has only to blamethe case of the sales to dealers in Goa, no doubt the appellant did produce the declarations in the prescribed form but those declarations were not produced within the time prescribed. The notifications issued prescribed that the declarations in question should be produced within the time prescribed therein. We have already held that those notifications were valid notifications. The appellant has suffered because of its ownsee no merit in any of the contentions advanced on behalf of the appellant.
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Martand Dairy & Farm Vs. The Union Of India & Ors | a sure method of sealing. Further, if the item were not a liquid like cream, but a solid, it could be transported even in gunny bags - merely stitched and without any seal. If this view be sound, certainly the Benaras cream dealer is out of the liability zone. We do not examine the impact on taxability had the receptacles been returned by the buyer since it does not arise on the evidence.6. Shri Desai further drew our attention to the fact that the containers had no particular design nor did they bear any special marks or have a uniform size. Thus the sealed container had no connection with the bargain or the stuff sold. The emphasis was on the cream and the container had no pertinence in the context. In this connection, he also referred to Section 8 of the Act which refers to containers and packing material. There is force in the argument, certainly. But as earlier indicated, judicial adventure in interpretation - particularly in tax matters - is severely circumscribed. Mr. Desai posed the question whether sale in loose quantities and unsealed containers (in this very case, cream had also been sold in milk cans which were not sealed and had been granted tax exemption) made any difference from similar sales, in old kerosene tins, the soldering being no sin which attached tax guilt. Not that we are oblivious to the force of this argument but we are influenced by the words whose normal meaning should ordinarily guide interpretation. All that the notification states is that products sold in sealed containers must sail out of the harbour of exemption. The simple question is this: Was the sale of cream? Yes. Was it, when sold, packaged in containers which were sealed? Yes. On these two affirmative answers the exclusion from the exemption operates. Such is the contention put forward on behalf if the taxing authority by Shri Sanghi, learned counsel.7. In this connection, he drew our attention to Commissioner of Sales Tax, U. P. (1968) 21 STC 63 (SC). Sikri J. (as he then was), speaking for the Court, considered a somewhat similar question of exemption where sales tax dealers in cooked food other than cooked food sold in sealed containers were conferred exemption, on certain conditions. The commodity there was confectionery sold in sealed containers and the High Court upheld the assessees case with these words:"In commercial world in such trades, particularly where food materials are concerned, it would be seen that the name and reputation of the manufacturer by itself is a sufficient evidence or guarantee of the quality of the contents. The most usual form or method for furnishing such evidence or guarantee of the quality and quantity of the contents is by way of putting its seal by the manufacturer in order to secure the goods in the container in such manner that to have access to the contents of the container the seal so put has to be destroyed or broken. For if it were not so done neither the retailer nor the purchaser would be sure whether the goods inside the container as to their quality and quantity are the same as represented and have not been otherwise adulterated or mixed up by extraneous elements is hardly necessary to mention that a dealer carrying on the business of selling sweetmeats and confectionery on a comparatively smaller scale would find it uneconomical commercially to put the stuff sold or to be sold in sealed containers; it is only a large scale manufacturer who manufactures and exports the confectionery who would need selling the same in a container. In our opinion, therefore it is only that class of dealers carrying on the business of sale of confectionery in sealed containers as explained above who were not intended to be exempted from the liability to pay sales tax on their turnover."On appeal, this Court, after noticing the plausibility of the opposite point of view and guessing the possible administrative and other reasons for the exclusion from exemption, held:"Be that as it may, in the context it is difficult to give to the expression sealed container a meaning different from the ordinary dictionary meaning."8."Sealed container" merely means a container which is "so closed that access to the contents is impossible without breaking the fastening. The expression seal in this context does not involve an affixture of the seal of the seller such as impressing a signet in wax etc., as evidence or guarantee of authenticity. An article may be regarded as put in sealed containers if it is closed securely in any vessel or container by any kind of fastening or covering that must be broken before access can be obtained to what is packed inside. This is the popular, perhaps the literal, meaning of the expressions used in the notification. May be the State thought that sealed containers would be used only by big manufacturers who were able to bear the burden of tax; may be administrative convenience in assessing quantities sold induced this step. It is not for the Court to launch on obscure fiscal astrology but merely to construe what has been expressed in plain words. We should have been happier if the State had furnished the reasons prompting the exclusion from the exemption. An intelligent appreciation of the reason of the rule is an aid to judicial construction but the State has not been as alert on this score as we might have wished. Why should a sale, if generally exempt from tax being a milk product, forfeit it merely because the wholesome step of sealing the container and insulating the food article from contamination, is taken during transit? But counsel for the state has expressed his inability to throw light on this aspect or on the reasons for the policy. Had the States counter-affidavit been more illuminating on these questions, it would have performed a service to this Court and to the public and rendered the task of judicial construction simpler. | 0[ds]Thus in general terms, cream is exempted from payment of Central Sales Tax by virtue of this notification but it carves out an exception to the exemption. If the cream were sold in sealed containers the seller could not come within the exemption notification. We need not go into the technique of sealing adopted in this case since it is common ground now that the cream is put in containers whose lids are properly soldered.The High Court has negatived the plea of the assessee and since we are inclined to agree with its reasoning, we express our grounds only briefly,although we may, in passing, make reference to two decisions cited before us viz., Govindram Ramprasad v Assessing Authority (Sales Tax), 8 STC 407 = (AIR 1958 Madh Pra 16) and Commr, of Sales Tax, U.P. v. G. G. Industries. (1968) 21 STC 63 (SC). Govindram a decision of the Madhya Pradesh High Court is not germane to the question we are dealing with and therefore we need not discussis force in the argument, certainly. But as earlier indicated, judicial adventure in interpretation - particularly in tax matters - is severelythat we are oblivious to the force of this argument but we are influenced by the words whose normal meaning should ordinarily guide interpretation. All that the notification states is that products sold in sealed containers must sail out of the harbour ofthe sale of cream? Yes. Was it, when sold, packaged in containers which were sealed? Yes. Onthese two affirmative answers the exclusion from the exemptioncontainer" merely means a container which is "so closed that access to the contents is impossible without breaking the fastening. The expression seal in this context does not involve an affixture of the seal of the seller such as impressing a signet in wax etc., as evidence or guarantee of authenticity. An article may be regarded as put in sealed containers if it is closed securely in any vessel or container by any kind of fastening or covering that must be broken before access can be obtained to what is packed inside. This is the popular, perhaps the literal, meaning of the expressions used in the notification. May be the State thought that sealed containers would be used only by big manufacturers who were able to bear the burden of tax; may be administrative convenience in assessing quantities sold induced this step. It is not for the Court to launch on obscure fiscal astrology but merely to construe what has been expressed in plain words. We should have been happier if the State had furnished the reasons prompting the exclusion from the exemption. An intelligent appreciation of the reason of the rule is an aid to judicial construction but the State has not been as alert on this score as we might havecounsel for the state has expressed his inability to throw light on this aspect or on the reasons for the policy. Had the States counter-affidavit been more illuminating on these questions, it would have performed a service to this Court and to the public and rendered the task of judicial constructionthis view be sound, certainly the Benaras cream dealer is out of the liability zone. We do not examine the impact on taxability had the receptacles been returned by the buyer since it does not arise on the evidence. | 0 | 2,137 | 611 | ### Instruction:
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a sure method of sealing. Further, if the item were not a liquid like cream, but a solid, it could be transported even in gunny bags - merely stitched and without any seal. If this view be sound, certainly the Benaras cream dealer is out of the liability zone. We do not examine the impact on taxability had the receptacles been returned by the buyer since it does not arise on the evidence.6. Shri Desai further drew our attention to the fact that the containers had no particular design nor did they bear any special marks or have a uniform size. Thus the sealed container had no connection with the bargain or the stuff sold. The emphasis was on the cream and the container had no pertinence in the context. In this connection, he also referred to Section 8 of the Act which refers to containers and packing material. There is force in the argument, certainly. But as earlier indicated, judicial adventure in interpretation - particularly in tax matters - is severely circumscribed. Mr. Desai posed the question whether sale in loose quantities and unsealed containers (in this very case, cream had also been sold in milk cans which were not sealed and had been granted tax exemption) made any difference from similar sales, in old kerosene tins, the soldering being no sin which attached tax guilt. Not that we are oblivious to the force of this argument but we are influenced by the words whose normal meaning should ordinarily guide interpretation. All that the notification states is that products sold in sealed containers must sail out of the harbour of exemption. The simple question is this: Was the sale of cream? Yes. Was it, when sold, packaged in containers which were sealed? Yes. On these two affirmative answers the exclusion from the exemption operates. Such is the contention put forward on behalf if the taxing authority by Shri Sanghi, learned counsel.7. In this connection, he drew our attention to Commissioner of Sales Tax, U. P. (1968) 21 STC 63 (SC). Sikri J. (as he then was), speaking for the Court, considered a somewhat similar question of exemption where sales tax dealers in cooked food other than cooked food sold in sealed containers were conferred exemption, on certain conditions. The commodity there was confectionery sold in sealed containers and the High Court upheld the assessees case with these words:"In commercial world in such trades, particularly where food materials are concerned, it would be seen that the name and reputation of the manufacturer by itself is a sufficient evidence or guarantee of the quality of the contents. The most usual form or method for furnishing such evidence or guarantee of the quality and quantity of the contents is by way of putting its seal by the manufacturer in order to secure the goods in the container in such manner that to have access to the contents of the container the seal so put has to be destroyed or broken. For if it were not so done neither the retailer nor the purchaser would be sure whether the goods inside the container as to their quality and quantity are the same as represented and have not been otherwise adulterated or mixed up by extraneous elements is hardly necessary to mention that a dealer carrying on the business of selling sweetmeats and confectionery on a comparatively smaller scale would find it uneconomical commercially to put the stuff sold or to be sold in sealed containers; it is only a large scale manufacturer who manufactures and exports the confectionery who would need selling the same in a container. In our opinion, therefore it is only that class of dealers carrying on the business of sale of confectionery in sealed containers as explained above who were not intended to be exempted from the liability to pay sales tax on their turnover."On appeal, this Court, after noticing the plausibility of the opposite point of view and guessing the possible administrative and other reasons for the exclusion from exemption, held:"Be that as it may, in the context it is difficult to give to the expression sealed container a meaning different from the ordinary dictionary meaning."8."Sealed container" merely means a container which is "so closed that access to the contents is impossible without breaking the fastening. The expression seal in this context does not involve an affixture of the seal of the seller such as impressing a signet in wax etc., as evidence or guarantee of authenticity. An article may be regarded as put in sealed containers if it is closed securely in any vessel or container by any kind of fastening or covering that must be broken before access can be obtained to what is packed inside. This is the popular, perhaps the literal, meaning of the expressions used in the notification. May be the State thought that sealed containers would be used only by big manufacturers who were able to bear the burden of tax; may be administrative convenience in assessing quantities sold induced this step. It is not for the Court to launch on obscure fiscal astrology but merely to construe what has been expressed in plain words. We should have been happier if the State had furnished the reasons prompting the exclusion from the exemption. An intelligent appreciation of the reason of the rule is an aid to judicial construction but the State has not been as alert on this score as we might have wished. Why should a sale, if generally exempt from tax being a milk product, forfeit it merely because the wholesome step of sealing the container and insulating the food article from contamination, is taken during transit? But counsel for the state has expressed his inability to throw light on this aspect or on the reasons for the policy. Had the States counter-affidavit been more illuminating on these questions, it would have performed a service to this Court and to the public and rendered the task of judicial construction simpler.
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Thus in general terms, cream is exempted from payment of Central Sales Tax by virtue of this notification but it carves out an exception to the exemption. If the cream were sold in sealed containers the seller could not come within the exemption notification. We need not go into the technique of sealing adopted in this case since it is common ground now that the cream is put in containers whose lids are properly soldered.The High Court has negatived the plea of the assessee and since we are inclined to agree with its reasoning, we express our grounds only briefly,although we may, in passing, make reference to two decisions cited before us viz., Govindram Ramprasad v Assessing Authority (Sales Tax), 8 STC 407 = (AIR 1958 Madh Pra 16) and Commr, of Sales Tax, U.P. v. G. G. Industries. (1968) 21 STC 63 (SC). Govindram a decision of the Madhya Pradesh High Court is not germane to the question we are dealing with and therefore we need not discussis force in the argument, certainly. But as earlier indicated, judicial adventure in interpretation - particularly in tax matters - is severelythat we are oblivious to the force of this argument but we are influenced by the words whose normal meaning should ordinarily guide interpretation. All that the notification states is that products sold in sealed containers must sail out of the harbour ofthe sale of cream? Yes. Was it, when sold, packaged in containers which were sealed? Yes. Onthese two affirmative answers the exclusion from the exemptioncontainer" merely means a container which is "so closed that access to the contents is impossible without breaking the fastening. The expression seal in this context does not involve an affixture of the seal of the seller such as impressing a signet in wax etc., as evidence or guarantee of authenticity. An article may be regarded as put in sealed containers if it is closed securely in any vessel or container by any kind of fastening or covering that must be broken before access can be obtained to what is packed inside. This is the popular, perhaps the literal, meaning of the expressions used in the notification. May be the State thought that sealed containers would be used only by big manufacturers who were able to bear the burden of tax; may be administrative convenience in assessing quantities sold induced this step. It is not for the Court to launch on obscure fiscal astrology but merely to construe what has been expressed in plain words. We should have been happier if the State had furnished the reasons prompting the exclusion from the exemption. An intelligent appreciation of the reason of the rule is an aid to judicial construction but the State has not been as alert on this score as we might havecounsel for the state has expressed his inability to throw light on this aspect or on the reasons for the policy. Had the States counter-affidavit been more illuminating on these questions, it would have performed a service to this Court and to the public and rendered the task of judicial constructionthis view be sound, certainly the Benaras cream dealer is out of the liability zone. We do not examine the impact on taxability had the receptacles been returned by the buyer since it does not arise on the evidence.
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National Rayon Corporation Ltd Vs. The Commissioner Of Income Tax | 11. We are unable to agree with this view for the reasons given earlier in the judgment. 12. Apart from this, the argument that found favour with the courts in the cases of Peico Electronics and Electricals (Cal) and Modi Industries Ltd. (No. 2) (Delhi), that if the retention or appropriation of a sum out of profits and surpluses was for an unknown liability or for a liability which did not exist on the relevant date it must be regarded as a " reserve ", was specifically rejected by this court in Vazir Sultans case. This argument of the assessee was held to be fallacious. 13. There is another aspect of this case. In the prescribed form of balance-sheet, under the heading " Reserves and surpluses " seven types of reserves have to be shown (1) Capital reserves (2) Capital redemption reserve (3) Share premium account (4) Other reserves (5) Surplus, i.e., balance in profit and loss account (6) Proposed additions to reserves (7) Sinking funds 14. However, for the purpose of computation of capital of a company under the Companies (Profits) Surtax Act, 1964, items Nos. (5), (6) and (7) will not be treated as reserves. The Second Schedule to the Surtax Act lays down the rules for computation of the capital. Rule 1 contains an Explanation to the following effect " Explanation.---For the removal of doubts it is hereby declared that any amount standing to the credit of any account in the books of a company as on the first day of the previous year relevant to the assessment year which is of the nature of item (5) or item (6) or item (7) under the heading Reserves and surplus or of any item under the heading current liabilities and provisions in the column relating to liabilities in the form of balance-sheet given in Part I of Schedule VI to the Companies Act, 1956 (1 of 1956), shall not be regarded as a reserve for the purposes of computation of the capital of a company under the provisions of this Schedule. " * 15. In Batlibois Advanced Accountancy, 27th edition, page 678, the nature of a sinking fund is explained as under " Sinking fund.---A sinking fund is a fund created with the object of providing means for the redemption of liabilities like debentures or any other loan. It is formed by setting aside, half-yearly or yearly, a fixed sum of money for a definite period, such sum to be invested at compound interest, so that at the end of the period, the annual amounts, with accumulations of interest, will be sufficient to discharge a prescribed loan. In such a case, the amount set aside should not be debited to Revenue Account but to a Net Revenue Account or Profit and Loss Appropriation Account, as being rather in the nature of an allocation of profits than a charge against them. " * 16. A sinking fund created for redemption of debentures will not be treated as a reserve even though (1) it has to be shown as " reserve " in the balance-sheet and (2) the amount kept in this fund is in the nature of allocation of profits and not a charge against them. It is difficult to see, in the context of this rule in the Second Schedule, why a debenture redemption reserve is to be treated as " reserve " on the ground that the amounts set apart for redemption of debentures are not in the nature of a charge against profits but merely appropriation of profit. In Peico Electronics and Electricals case, (Cal), one of the grounds which weighed with the court was the argument that the sinking fund has to be utilised by making investments and did not form part of the working capital of the company but the amount lying to the credit of the debenture redemption reserve was available to the company to be used as working capital. 17. We fail to comprehend this distinction. What has to be computed under rule 1 of the Second Schedule to the Surtax Act is the capital of the company and not its working capital. The amount shown as sinking fund may be invested in a fruitful way so that the principal and gains from the investments taken together will enable the company to pay off its debts. Investment of monies standing to the credit of the sinking fund is nothing but utilisation of the companys assets for the discharge of its liabilities. There is no rational explanation why a sinking fund for redemption of debentures will not be a reserve but a debenture redemption reserve created with the same purpose will be treated as reserve and included in the computation of capital of the company for surtax purposes. A construction which leads to absurdity should be avoidedThe basic principle is that any amount retained by way of providing for a known liability will not be " reserve ". Explanation to rule 1 of the Second Schedule to the Surtax Act takes this principle to its logical conclusion by providing that even a sinking fund, which has to be shown as a reserve in the prescribed form of balance-sheet, will not be treated as " reserve " for the purpose of computation of capital. 18. It is further to be noted that the surplus and unallocated balance in the profit and loss account has been specifically excluded from " reserves " for computation of capital under the Surtax Act. Therefore, availability of the amount for utilisation as working capital of the company or for distribution of dividend cannot be a criterion for deciding whether a particular amount retained from the profits of the company will be treated as its reserve or not. 19. In the premises, we are of the view that the judgment under appeal was rightly decided. We are unable to uphold the contrary decisions in the cases of Peico Electronics and Electricals (Cal) and Modi Industries Ltd. (No. 2) (Delhi) 20. | 0[ds]We are of the view that the High Court has come to the correct conclusion. The basic principle is that an amount set apart to meet a known liability cannot be regarded as " reserve ". " Provision " and " reserve " have been defined in Part III, Schedule VI, to the Companies Actdefinition clearly indicates that if an amount is retained by way of providing for any known liability that amount shall not be treated as a reserve. Clause 7(2)(b) makes it clear that only an amount which is in excess of what is reasonably necessary for meeting a known liability shall be treated as reserve and not as provision. The directors will have to form an opinion as to what is reasonably necessary for meeting the known liability of a company. The opinion of an accountant or an auditor or a lawyer is quite immaterial for thisfinding of fact in this case is that the amount set apart for redemption of debentures is less than the companys liability on this account. Therefore, the answer to the question raised must be that the amount of Rs. 79 lakhs representing debenture redemption reserve cannot be included in the capital of the company for the purpose of surtax assessment. The facts stated in the judgment of the High Court go to show that the amount was not larger than the amount which had to be paid for redemption of the debentures. Therefore, there is no question of any excess provision of thisare of the view that this approach is erroneous and overlooks the definitions of " provision " and " reserve " given in the Companies Act. The debentures were nothing but secured loans. Merely because the debentures were not redeemable during the accounting period, the liability to redeem the debentures did not cease to exist. It was redeemable or repayable at a future date. But it was a known liability. In the form of balance-sheet prescribed by the Act in Schedule VI, the secured loans have to be shown under the heading " liabilities ". Secured loans include (1) debentures, (2) loans and advances from banks, (3) loans and advances from subsidiaries, and (4) other loans and advances. The secured loans might not be immediately repayable, but the liability to repay these loans is an existing liability and has to be shown in the companys balance-sheet for the relevant year of account as a liability. Amounts set apart to pay these loans cannot be " reserve ". The interpretation clause of the balance-sheet in Schedule VI of the Companies Act specifically lays down that reserves shall not include any amount written off or retained by way of providing for a known liabilityThe Delhi High Court in the case of CIT v. Modi Industries Ltd. (No. 2) also took the view that the amount set apart out of the profits to redeem the debentures had to be treated as reserves because, there was no liability in the current year to redeem theare unable to agree with this view for the reasons given earlier in thesinking fund created for redemption of debentures will not be treated as a reserve even though (1) it has to be shown as " reserve " in the balance-sheet and (2) the amount kept in this fund is in the nature of allocation of profits and not a charge against them. It is difficult to see, in the context of this rule in the Second Schedule, why a debenture redemption reserve is to be treated as " reserve " on the ground that the amounts set apart for redemption of debentures are not in the nature of a charge against profits but merely appropriation of profit. In Peico Electronics and Electricals case, (Cal), one of the grounds which weighed with the court was the argument that the sinking fund has to be utilised by making investments and did not form part of the working capital of the company but the amount lying to the credit of the debenture redemption reserve was available to the company to be used as workingfail to comprehend this distinction. What has to be computed under rule 1 of the Second Schedule to the Surtax Act is the capital of the company and not its working capital. The amount shown as sinking fund may be invested in a fruitful way so that the principal and gains from the investments taken together will enable the company to pay off its debts. Investment of monies standing to the credit of the sinking fund is nothing but utilisation of the companys assets for the discharge of its liabilities. There is no rational explanation why a sinking fund for redemption of debentures will not be a reserve but a debenture redemption reserve created with the same purpose will be treated as reserve and included in the computation of capital of the company for surtax purposes. A construction which leads to absurdity should be avoidedThe basic principle is that any amount retained by way of providing for a known liability will not be " reserve ". Explanation to rule 1 of the Second Schedule to the Surtax Act takes this principle to its logical conclusion by providing that even a sinking fund, which has to be shown as a reserve in the prescribed form of balance-sheet, will not be treated as " reserve " for the purpose of computation ofis further to be noted that the surplus and unallocated balance in the profit and loss account has been specifically excluded from " reserves " for computation of capital under the Surtax Act. Therefore, availability of the amount for utilisation as working capital of the company or for distribution of dividend cannot be a criterion for deciding whether a particular amount retained from the profits of the company will be treated as its reserve orthe premises, we are of the view that the judgment under appeal was rightly decided. We are unable to uphold the contrary decisions in the cases of Peico Electronics and Electricals (Cal) and Modi Industries Ltd. (No. 2)we are concerned in this appeal only with the amount of Rs. 6, 66, 159, which was appropriated to gratuity reserve. The question is whether this should be treated as reserve or provision. The point is well settled by the decision of this court in the case of Vazir Sultan. The answer to the question will be that the amount of Rs. 6, 66, 159 will have to be treated as provision and not reserve. We answer the question accordingly. The order of the High Court to the above extent is set asideA point has been taken on behalf of the respondents that the amount was more than what was actually required to be set apart as liability for gratuity. We are not expressing any opinion as to that because that is a question of fact. It does not appear from the High Courts order or the question raised that this point was at all in issue before the court or the Tribunal | 0 | 3,149 | 1,274 | ### Instruction:
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11. We are unable to agree with this view for the reasons given earlier in the judgment. 12. Apart from this, the argument that found favour with the courts in the cases of Peico Electronics and Electricals (Cal) and Modi Industries Ltd. (No. 2) (Delhi), that if the retention or appropriation of a sum out of profits and surpluses was for an unknown liability or for a liability which did not exist on the relevant date it must be regarded as a " reserve ", was specifically rejected by this court in Vazir Sultans case. This argument of the assessee was held to be fallacious. 13. There is another aspect of this case. In the prescribed form of balance-sheet, under the heading " Reserves and surpluses " seven types of reserves have to be shown (1) Capital reserves (2) Capital redemption reserve (3) Share premium account (4) Other reserves (5) Surplus, i.e., balance in profit and loss account (6) Proposed additions to reserves (7) Sinking funds 14. However, for the purpose of computation of capital of a company under the Companies (Profits) Surtax Act, 1964, items Nos. (5), (6) and (7) will not be treated as reserves. The Second Schedule to the Surtax Act lays down the rules for computation of the capital. Rule 1 contains an Explanation to the following effect " Explanation.---For the removal of doubts it is hereby declared that any amount standing to the credit of any account in the books of a company as on the first day of the previous year relevant to the assessment year which is of the nature of item (5) or item (6) or item (7) under the heading Reserves and surplus or of any item under the heading current liabilities and provisions in the column relating to liabilities in the form of balance-sheet given in Part I of Schedule VI to the Companies Act, 1956 (1 of 1956), shall not be regarded as a reserve for the purposes of computation of the capital of a company under the provisions of this Schedule. " * 15. In Batlibois Advanced Accountancy, 27th edition, page 678, the nature of a sinking fund is explained as under " Sinking fund.---A sinking fund is a fund created with the object of providing means for the redemption of liabilities like debentures or any other loan. It is formed by setting aside, half-yearly or yearly, a fixed sum of money for a definite period, such sum to be invested at compound interest, so that at the end of the period, the annual amounts, with accumulations of interest, will be sufficient to discharge a prescribed loan. In such a case, the amount set aside should not be debited to Revenue Account but to a Net Revenue Account or Profit and Loss Appropriation Account, as being rather in the nature of an allocation of profits than a charge against them. " * 16. A sinking fund created for redemption of debentures will not be treated as a reserve even though (1) it has to be shown as " reserve " in the balance-sheet and (2) the amount kept in this fund is in the nature of allocation of profits and not a charge against them. It is difficult to see, in the context of this rule in the Second Schedule, why a debenture redemption reserve is to be treated as " reserve " on the ground that the amounts set apart for redemption of debentures are not in the nature of a charge against profits but merely appropriation of profit. In Peico Electronics and Electricals case, (Cal), one of the grounds which weighed with the court was the argument that the sinking fund has to be utilised by making investments and did not form part of the working capital of the company but the amount lying to the credit of the debenture redemption reserve was available to the company to be used as working capital. 17. We fail to comprehend this distinction. What has to be computed under rule 1 of the Second Schedule to the Surtax Act is the capital of the company and not its working capital. The amount shown as sinking fund may be invested in a fruitful way so that the principal and gains from the investments taken together will enable the company to pay off its debts. Investment of monies standing to the credit of the sinking fund is nothing but utilisation of the companys assets for the discharge of its liabilities. There is no rational explanation why a sinking fund for redemption of debentures will not be a reserve but a debenture redemption reserve created with the same purpose will be treated as reserve and included in the computation of capital of the company for surtax purposes. A construction which leads to absurdity should be avoidedThe basic principle is that any amount retained by way of providing for a known liability will not be " reserve ". Explanation to rule 1 of the Second Schedule to the Surtax Act takes this principle to its logical conclusion by providing that even a sinking fund, which has to be shown as a reserve in the prescribed form of balance-sheet, will not be treated as " reserve " for the purpose of computation of capital. 18. It is further to be noted that the surplus and unallocated balance in the profit and loss account has been specifically excluded from " reserves " for computation of capital under the Surtax Act. Therefore, availability of the amount for utilisation as working capital of the company or for distribution of dividend cannot be a criterion for deciding whether a particular amount retained from the profits of the company will be treated as its reserve or not. 19. In the premises, we are of the view that the judgment under appeal was rightly decided. We are unable to uphold the contrary decisions in the cases of Peico Electronics and Electricals (Cal) and Modi Industries Ltd. (No. 2) (Delhi) 20.
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answer to the question raised must be that the amount of Rs. 79 lakhs representing debenture redemption reserve cannot be included in the capital of the company for the purpose of surtax assessment. The facts stated in the judgment of the High Court go to show that the amount was not larger than the amount which had to be paid for redemption of the debentures. Therefore, there is no question of any excess provision of thisare of the view that this approach is erroneous and overlooks the definitions of " provision " and " reserve " given in the Companies Act. The debentures were nothing but secured loans. Merely because the debentures were not redeemable during the accounting period, the liability to redeem the debentures did not cease to exist. It was redeemable or repayable at a future date. But it was a known liability. In the form of balance-sheet prescribed by the Act in Schedule VI, the secured loans have to be shown under the heading " liabilities ". Secured loans include (1) debentures, (2) loans and advances from banks, (3) loans and advances from subsidiaries, and (4) other loans and advances. The secured loans might not be immediately repayable, but the liability to repay these loans is an existing liability and has to be shown in the companys balance-sheet for the relevant year of account as a liability. Amounts set apart to pay these loans cannot be " reserve ". The interpretation clause of the balance-sheet in Schedule VI of the Companies Act specifically lays down that reserves shall not include any amount written off or retained by way of providing for a known liabilityThe Delhi High Court in the case of CIT v. Modi Industries Ltd. (No. 2) also took the view that the amount set apart out of the profits to redeem the debentures had to be treated as reserves because, there was no liability in the current year to redeem theare unable to agree with this view for the reasons given earlier in thesinking fund created for redemption of debentures will not be treated as a reserve even though (1) it has to be shown as " reserve " in the balance-sheet and (2) the amount kept in this fund is in the nature of allocation of profits and not a charge against them. It is difficult to see, in the context of this rule in the Second Schedule, why a debenture redemption reserve is to be treated as " reserve " on the ground that the amounts set apart for redemption of debentures are not in the nature of a charge against profits but merely appropriation of profit. In Peico Electronics and Electricals case, (Cal), one of the grounds which weighed with the court was the argument that the sinking fund has to be utilised by making investments and did not form part of the working capital of the company but the amount lying to the credit of the debenture redemption reserve was available to the company to be used as workingfail to comprehend this distinction. What has to be computed under rule 1 of the Second Schedule to the Surtax Act is the capital of the company and not its working capital. The amount shown as sinking fund may be invested in a fruitful way so that the principal and gains from the investments taken together will enable the company to pay off its debts. Investment of monies standing to the credit of the sinking fund is nothing but utilisation of the companys assets for the discharge of its liabilities. There is no rational explanation why a sinking fund for redemption of debentures will not be a reserve but a debenture redemption reserve created with the same purpose will be treated as reserve and included in the computation of capital of the company for surtax purposes. A construction which leads to absurdity should be avoidedThe basic principle is that any amount retained by way of providing for a known liability will not be " reserve ". Explanation to rule 1 of the Second Schedule to the Surtax Act takes this principle to its logical conclusion by providing that even a sinking fund, which has to be shown as a reserve in the prescribed form of balance-sheet, will not be treated as " reserve " for the purpose of computation ofis further to be noted that the surplus and unallocated balance in the profit and loss account has been specifically excluded from " reserves " for computation of capital under the Surtax Act. Therefore, availability of the amount for utilisation as working capital of the company or for distribution of dividend cannot be a criterion for deciding whether a particular amount retained from the profits of the company will be treated as its reserve orthe premises, we are of the view that the judgment under appeal was rightly decided. We are unable to uphold the contrary decisions in the cases of Peico Electronics and Electricals (Cal) and Modi Industries Ltd. (No. 2)we are concerned in this appeal only with the amount of Rs. 6, 66, 159, which was appropriated to gratuity reserve. The question is whether this should be treated as reserve or provision. The point is well settled by the decision of this court in the case of Vazir Sultan. The answer to the question will be that the amount of Rs. 6, 66, 159 will have to be treated as provision and not reserve. We answer the question accordingly. The order of the High Court to the above extent is set asideA point has been taken on behalf of the respondents that the amount was more than what was actually required to be set apart as liability for gratuity. We are not expressing any opinion as to that because that is a question of fact. It does not appear from the High Courts order or the question raised that this point was at all in issue before the court or the Tribunal
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DEPUTY COMMISSIONER OF INCOME TAX & ANR Vs. M/S. PEPSI FOODS LTD. (NOW PEPSICO INDIA HOLDINGS PVT. LTD.) | In the case of Seth Nand Lal [1980 Supp SCC 574] while considering the question of validity of pre-deposit before availing the right of appeal the Court held: (SCC p. 590, para 22) [R]ight of appeal is a creature of the statute and while granting the right the legislature can impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory. [emphasis supplied] This Court ultimately struck down Section 17(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as SARFAESI Act) holding that in the circumstances mentioned, the deposit of 75% of the amount claimed as a pre-condition to the hearing of an appeal before the Debt Recovery Tribunal under Section 17 of the SARFAESI Act was onerous, oppressive, unreasonable, arbitrary and hence violative of Article 14 of the Constitution of India. 21. The learned ASG then relied upon judgments which indicate that when Article 14 of the Constitution of India is applied to tax legislation, greater freedom in the joints must be allowed by the Court in adjudging the constitutional validity of the same. For this purpose, he relied upon State of M.P. v. Bhopal Sugar Industries Ltd. (1964) 6 SCR 846. In this case, the judgment of this Court held that if the statute discloses a permissible policy of taxation, the Courts will uphold it. If, however, the tax was imposed deliberately with the object of differentiating between persons similarly circumstanced, such tax would be liable to be struck down. 22. We have already seen how unequals have been treated equally so far as assessees who are responsible for delaying appellate proceedings and those who are not so responsible, resulting in a violation of Article 14 of the Constitution of India. Also, the expression permissible policy of taxation would refer to a policy that is constitutionally permissible. If the policy is itself arbitrary and discriminatory, such policy will have to be struck down, as has been found in paragraph 17 above. 23. The other judgment relied upon by the learned ASG is the judgment in N. Venugopala Ravi Varma Rajah v. Union of India (1969) 1 SCC 681 ( paragraph 14). This judgment speaks of a larger play in the joints to legislative discretion in the matter of classification being granted when such legislation is a tax legislation. The caveat applied in this paragraph is that a taxing statute may contravene Article 14 of the Constitution of India if it seeks to impose upon the same class of property, persons, etc., something which leads to obvious inequality. It is this caveat that has been applied to the third proviso to Section 254(2A) of the Income Tax Act. 24. The learned ASG then relied upon Commr. of Customs v. Dilip Kumar & Co. (2018) 9 SCC 1 ( paragraphs 32 to 34). This judgment only reiterates the well-settled principle that in the field of taxation hardship or equity has no role to play in determining eligibility to tax. The present appeals have nothing to do with determining eligibility to tax. They have only to do with a frontal challenge to the constitutional validity of an appeal provision in the Income Tax Act. Also, it is important to remember that the golden rule of interpretation is not given a go-by when it comes to interpretation of tax statutes. This Court in CIT v. J.H. Gotla (1985) 4 SCC 343 , put it well when it said: 46. Where the plain literal interpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the Legislature, the Court might modify the language used by the Legislature so as to achieve the intention of the Legislature and produce a rational construction. The task of interpretation of a statutory provision is an attempt to discover the intention of the Legislature from the language used. It is necessary to remember that language is at best an imperfect instrument for the expression of human intention. It is well to remember the warning administered by Judge Learned Hand that one should not make a fortress out of dictionary but remember that statutes always have some purpose or object to accomplish and sympathetic and imaginative discovery is the surest guide to their meaning. 47. We have noted the object of Section 16(3) of the Act which has to be read in conjunction with Section 24(2) in this case for the present purpose. If the purpose of a particular provision is easily discernible from the whole scheme of the Act which in this case is, to counteract the effect of the transfer of assets so far as computation of income of the assessee is concerned then bearing that purpose in mind, we should find out the intention from the language used by the Legislature and if strict literal construction leads to an absurd result i.e. result not intended to be subserved by the object of the legislation found in the manner indicated before, and if another construction is possible apart from strict literal construction then that construction should be preferred to the strict literal construction. Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction. Furthermore, in the instant case we are dealing with an artificial liability created for counteracting the effect only of attempts by the assessee to reduce tax liability by transfer. It has also been noted how for various purposes the business from which profit is included or loss is set off is treated in various situations as assessees income. The scheme of the Act as worked out has been noted before. 25. The law laid down by the impugned judgment of the Delhi High Court in M/s Pepsi Foods Ltd. (supra) is correct. | 1[ds]6. The genesis of the stay provision contained in Section 254 of the Income Tax Act is in the celebrated judgment of this Court in Income Tax Officer v. M.K. Mohammed Kunhi (1969) 2 SCR 65. In this judgment, Section 254 of the Income Tax Act, as originally enacted, came up for consideration before this Court. After setting out Section 254(1), this Court referred to Sutherland, Statutory Construction (3rd Edn., Arts. 5401 and 5402), and then held that the power which has been conferred by the said Section on the Appellate Tribunal with the widest possible amplitude must carry with it, by necessary implication, all powers incidental and necessary to make the exercise of such power fully effective. The Court held:Section 255(5) of the Act does empower the Appellate Tribunal to regulate its own procedure, but it is very doubtful if the power of stay can be spelt out from that provision. In our opinion the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. This is particularly so when Section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner, but the Act is silent in that behalf when an appeal is pending before the Appellate Tribunal. It could well be said that when Section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceedings as will prevent the appeal if successful from being rendered nugatory.A certain apprehension may legitimately arise in the minds of the authorities administering the Act that if the Appellate Tribunals proceed to stay recovery of taxes or penalties payable by or imposed on the assessees as a matter of course the revenue will be put to great loss because of the inordinate delay in the disposal of appeals by the Appellate Tribunals. It is needless to point out that the power of stay by the Tribunal is not likely to be exercised in a routine way or as a matter of course in view of the special nature of taxation and revenue laws. It wilt only be when a strong prima facie case is made out that the Tribunal will consider whether to stay the recovery proceedings and on what conditions and the stay will be granted in most deserving and appropriate cases where the Tribunal is satisfied that the entire purpose of the appeal will be frustrated or rendered nugatory by allowing the recovery proceedings to continue during the pendency of the appeal.[at page 72]Importantly, this Court recognised that orders of stay prevent the appeal, if ultimately successful, from being rendered nugatory or futile, and are granted only in deserving and appropriate cases.9. The aforementioned provision (as amended by Finance Act, 2007) became the subject matter of challenge before the Bombay High Court in Narang Overseas Pvt. Ltd. v. ITAT (2007) 295 ITR 22. The Bombay High Court, after referring to the judgment in Mohammed Kunhi (supra), then held:Did the section as it stood before the Finance Act of 2007, and after the Finance Act of 2007, exclude the power of the Tribunal to grant interim relief after the period provided in the proviso. Was it the intendement of Parliament that the Tribunal even in a case where the assessee was not at fault should be denuded of its incidental power to continue the interim relief granted and if so what mischief was it seeking to avoid. The mischief if and at all was the long delay in disposing of proceedings where interim relief had been obtained by the Assessee. The second proviso as it earlier stood, in a case when in an appeal interim relief was granted, if the appeal was not disposed off within 180 days provided that the stay shall stand vacated. The proviso as it stood could really have not have stood the test of non-arbitrariness as it would result in an appeal being defeated even if the assessee was not at fault, as in the meantime the revenue could proceed against the assets of the assessee. The proviso as introduced by the Finance Act, 2007 was to an extent to avoid the mischief of it being rendered unconstitutional. Once an appeal is provided, it cannot be rendered nugatory in cases were the assessee was not at fault.The amendment of 2007 conferred the power to extend the period of interim relief to 360 days. Parliament clearly intended that such appeals should be disposed of at the earliest. If that be the object the mischief which was sought to be avoided was the non- disposal of the appeal during the period the interim relief was in operation. By extending the period Parliament took note of laws delay. The object was not to defeat the vested right of Appeal in an assessee, whose appeal could not be disposed off not on account of any omission or failure on his part, but either the failure of the Tribunal or acts of revenue resulting in non-disposal of the appeal within the extended period as provided.Can it then be said that the intention of Parliament by restricting the period of stay or interim relief upto 360 days had the effect of excluding by necessary intendment the power of the Tribunal to continue the interim relief. Would not reading the power not to continue the power to continue interim relief in cases not attributable to the acts of the assessee result in holding that such a provision would be unreasonable. Could Parliament have intended to confer the remedy of an Appeal by denying the incidental power of the Tribunal to do justice. In our opinion for reasons already discussed it would not be possible to so read it.It would not be possible on the one hand to hold that there is a vested right of an appeal and on the other hand to hold that there is no power to continue the grant of interim relief for no fault of the assessee by divesting the incidental power of the Tribunal to continue the interim relief. Such a reading would result in such an exercise being rendered unreasonable and violative of Article 14 of the Constitution. Courts must, therefore, construe and/or give a construction consistent with the constitutional mandate and principle to avoid a provision being rendered unconstitutional.[at page 30-31]The High Court then referred to the judgment of this Court in Commissioner of Customs & Central Excise v. Kumar Cotton Mills (2005) 13 SCC 296 , which dealt with a similar provision contained in the Central Excise Act, 1944, namely, Section 35C(2A), and then held:We are of the respectful view that the law as enunciated in Kumar Cotton Mills Pvt. Ltd. (supra) should also apply to the construction of the third proviso as introduced in section 254(2A) by the Finance Act, 2007. The power to grant stay or interim relief being inherent or incidental is not defeated by the provisos to the sub-section. The third proviso has to be read as a limitation on the power of the Tribunal to continue interim relief in case where the hearing of the Appeal has been delayed for acts attributable to the assessee. It cannot mean that a construction be given that the power to grant interim relief is denuded even if the acts attributable are not of the assessee but of the revenue or of the Tribunal itself. The power of the Tribunal, therefore, to continue interim relief is not overridden by the language of the third proviso to section 254(2A). This would be in consonance with the view taken in Kumar Cotton Mills Pvt. Ltd. (supra). There would be power in the Tribunal to extend the period of stay on good cause being shown and on the Tribunal being satisfied that the matter could not be heard and disposed of for reasons not attributable to the assessee.[at page 32]11. The amended provision came to be considered by a Division Bench of the Delhi High Court in Commissioner of Income Tax v. M/s Maruti Suzuki (India) Ltd. (2014) 362 ITR 215. The constitutional validity of the said provision had not been challenged, as a result of which the Delhi High Court interpreted the third proviso to Section 254(2A) as follows:In view of the aforesaid discussion, we have reached the following conclusion:-(i) In view of the third proviso to Section 254(2A) of the Act substituted by Finance Act, 2008 with effect from 1st October, 2008, tribunal cannot extend stay beyond the period of 365 days from the date of first order of stay.(ii) In case default and delay is due to lapse on the part of the Revenue, the tribunal is at liberty to conclude hearing and decide the appeal, if there is likelihood that the third proviso to Section 254(2A) would come into operation.(iii) Third proviso to Section 254(2A) does not bar or prohibit the Revenue or departmental representative from making a statement that they would not take coercive steps to recover the impugned demand and on such statement being made, it will be open to the tribunal to adjourn the matter at the request of the Revenue.(iv) An assessee can file a writ petition in the High Court pleading and asking for stay and the High Court has power and jurisdiction to grant stay and issue directions to the tribunal as may be required. Section 254(2A) does not prohibit/bar the High Court from issuing appropriate directions, including granting stay of recovery.We have not examined the constitutional validity of the provisos to Section 254(2A) of the Act and the issue is left open.[at page 231]12. Close upon the heels of the judgment in Maruti Suzuki (supra), the Gujarat High Court in DCIT v. Vodafone Essar Gujarat Ltd. (2015) 376 ITR 23 , while disagreeing with the view taken in Maruti Suzuki (supra), interpreted the third proviso to Section 254(2A) of the Income Tax Act as follows:Applying the decision of the Division Bench of this court in the case of Small Industries Development Bank of India (supra) to the facts of the case on hand, more particularly while considering the powers of the Tribunal under section 254(2A) of the Act, it is observed and held that by section 254(2A) of the Act, it cannot be inferred a legislative intent to curtail/withdraw the powers of the Appellate Tribunal to extend stay of demand beyond the period of 365 days. However, the aforesaid extension of stay beyond the period of total 365 days from the date of grant of initial stay would always be subject to the subjective satisfaction by the learned Appellate Tribunal and on an application made by the assessee-appellant to extend stay and on being satisfied that the delay in disposing of the appeal within a period of 365 days from the date of grant of initial stay is not attributable to the appellant-assessee. For that purpose, on expiry of every 180 days, the appellant-assessee is required to make an application to extend stay granted earlier and satisfy the learned Appellate Tribunal that the delay in not disposing of the appeal is not attributable to him/it and the learned Appellate Tribunal is required to review the matter after every 180 days and while disposing of such application of extension of stay, the learned Appellate Tribunal is required to pass a speaking order after having satisfied that the assessee-appellant has not indulged into any delay tactics and that the delay in disposing of the appeal within stipulated time is not attributable to the assessee-appellant. However, at the same time, it may not be construed that widest powers are given to the Appellate Tribunal to extend the stay indefinitely and that the Appellate Tribunal is not required to dispose of the appeals at the earliest. The object and purpose of section 35C(2A) of the Act particularly one of the object and purpose is to see that in a case where stay has been granted by the learned Appellate Tribunal, the learned Appellate Tribunal is required to dispose of the appeal within total period of 365 days, as ultimately revenue has not to suffer and all efforts should be made by the learned Appellate Tribunal to dispose of such appeals in which stay has been granted as far as possible within total period of 365 days from the date of grant of initial stay and the Appellate Tribunal shall grant priority to such appeals over appeals in which no stay is granted. For that even the Appellate Tribunal and/or registrar of the Appellate Tribunal is required to maintain separate register of the appeals in which stay has been granted fully and/or partially and the appeals in which no stay has been granted.[at page 42-43]With greatest respect to the Delhi High Court, if the aforesaid procedure is adopted, either it would lead to multiplicity of proceedings before the High Court and/or even granting the stay of demand by the Department itself. We are of the opinion that instead if the aforesaid procedure is followed, it would meet the ends of justice and it may not increase the litigation either before the High Court and/or appropriate forum and the purpose and object of section 254(2A) of the Act is achieved.[at page 45-46]13. The impugned judgment in M/s Pepsi Foods Ltd. v. ACIT (2015) 376 ITR 87 dealt with the challenge to the constitutional validity of the third proviso to Section 254(2A) of the Income Tax Act, as amended by the Finance Act, 2008. A Division Bench of the Delhi High Court, after setting out the Bombay High Court judgment in Narang Overseas (supra), then referred to the previous judgment of the Delhi High Court in Maruti Suzuki (supra) and held:12. From the above extract, it is evident that the Division Bench was not called upon and did not examine the constitutional validity of the provisos to Section 254(2A) of the said Act and left the issue open. It is only on a plain reading of the provisos, as they existed, that the Division Bench came to the conclusion that the Tribunal had no power to extend stay beyond a period of 365 days from the date of the first order of stay but that an assessee could file a writ petition in the High Court asking for stay even beyond the said period of 365 days and the High Court had the power and jurisdiction to grant stay and issue directions to the Tribunal and that Section 254(2A) did not prohibit/bar the High Court from issuing appropriate directions, including grant of stay of recovery. A similar view was taken by the Bombay High Court in Jethmal Faujimal Soni (supra). But that decision was also rendered on a plain meaning of the provisos, as they stood. There was no challenge to the constitutional validity of the third proviso to Section 254(2A) of the said Act after the amendment introduced by the Finance Act, 2008. No decision of any High Court has been brought to our notice by the learned counsel for the parties, wherein the constitutional validity of the third proviso to Section 254(2A) of the said Act has been examined.[at page 96-97]After referring to this Courts judgment in Mardia Chemicals Ltd. v. Union of India (2004) 4 SCC 311 and the judgment of a Division Bench of the Punjab and Haryana High Court in PML Industries Ltd. v. CCE (2013) SCC OnLine P&H 4440, which dealt with a similar provision contained in Section 35C (2A) of the Central Excise Act,1944, the Court held:23. Keeping in mind the principles set out by the Supreme Court in Dr Subramanian Swamy (supra), we need to examine whether the present challenge to the validity of the third proviso to Section 254(2A) can be sustained. This is not a case of excessive delegation of powers and, therefore, we need not bother about the second dimension of Article 14 in its application to legislation. We are here concerned with the question of discrimination, based on an impermissible or invalid classification. It is abundantly clear that the power granted to the Tribunal to hear and entertain an appeal and to pass orders would include the ancillary power of the Tribunal to grant a stay. Of course, the exercise of that power can be subjected to certain conditions. In the present case, we find that there are several conditions which have been stipulated. First of all, as per the first proviso to Section 254(2A), a stay order could be passed for a period not exceeding 180 days and the Tribunal should dispose of the appeal within that period. The second proviso stipulates that in case the appeal is not disposed of within the period of 180 days, if the delay in disposing of the appeal is not attributable to the assessee, the Tribunal has the power to extend the stay for a period not exceeding 365 days in aggregate. Once again, the Tribunal is directed to dispose of the appeal within the said period of stay. The third proviso, as it stands today, stipulates that if the appeal is not disposed of within the period of 365 days, then the order of stay shall stand vacated, even if the delay in disposing of the appeal is not attributable to the assessee. While it could be argued that the condition that the stay order could be extended beyond a period of 180 days only if the delay in disposing of the appeal was not attributable to the assessee was a reasonable condition on the power of the Tribunal to the grant an order of stay, it can, by no stretch of imagination, be argued that where the assessee is not responsible for the delay in the disposal of the appeal, yet the Tribunal has no power to extend the stay beyond the period of 365 days. The intention of the legislature, which has been made explicit by insertion of the words - even if the delay in disposing of the appeal is not attributable to the assessee- renders the right of appeal granted to the assessee by the statute to be illusory for no fault on the part of the assessee. The stay, which was available to him prior to the 365 days having passed, is snatched away simply because the Tribunal has, for whatever reason, not attributable to the assessee, been unable to dispose of the appeal. Take the case of delay being caused in the disposal of the appeal on the part of the revenue. Even in that case, the stay would stand vacated on the expiry of 365 days. This is despite the fact that the stay was granted by the Tribunal, in the first instance, upon considering the prima facie merits of the case through a reasoned order.24. Furthermore, the petitioners are correct in their submission that unequals have been treated equally. Assessees who, after having obtained stay orders and by their conduct delay the appeal proceedings, have been treated in the same manner in which assessees, who have not, in any way, delayed the proceedings in the appeal. The two classes of assessees are distinct and cannot be clubbed together. This clubbing together has led to hostile discrimination against the assessees to whom the delay is not attributable. It is for this reason that we find that the insertion of the expression - even if the delay in disposing of the appeal is not attributable to the assessee- by virtue of the Finance Act, 2008, violates the non-discrimination clause of Article 14 of the Constitution of India. The object that appeals should be heard expeditiously and that assesses should not misuse the stay orders granted in their favour by adopting delaying tactics is not at all achieved by the provision as it stands. On the contrary, the clubbing together of well behaved assesses and those who cause delay in the appeal proceedings is itself violative of Article 14 of the Constitution and has no nexus or connection with the object sought to be achieved. The said expression introduced by the Finance Act, 2008 is, therefore, struck down as being violative of Article 14 of the Constitution of India. This would revert us to the position of law as interpreted by the Bombay High Court in Narang Overseas (supra), with which we are in full agreement. Consequently, we hold that, where the delay in disposing of the appeal is not attributable to the assessee, the Tribunal has the power to grant extension of stay beyond 365 days in deserving cases. The writ petitions are allowed as above.[at page 107-109]14. It is settled law that challenges to tax statutes made under Article 14 of the Constitution of India can be on grounds relatable to discrimination as well as grounds relatable to manifest arbitrariness. These grounds may be procedural or substantive in nature. Thus, in Suraj Mall Mohta and Co. v. A.V. Visvanatha Sastri (1955) 1 SCR 448 , this Court struck down Section 5(4) of the Taxation on Income (Investigation Commission) Act, 1947 on the ground that the procedure prescribed was substantially more prejudicial and more drastic to the assessee than the procedure contained in the Indian Income Tax Act, 1922. Section 5(4) of the aforesaid Act was thus struck down as a piece of discriminatory legislation offending against the provisions of Article 14 of the Constitution of India.15. Instances of taxation statutes being struck down on substantive grounds which had alleged discrimination can be found in the 5-Judge decision of this Court in Kunnathat Thatehunni Moopil Nair v. State of Kerala (1961) 3 SCR 77 , in which a uniform tax called basic tax levied under the provisions of the Travancore Cochin Land Tax Act, 1955 was held to be discriminatory as it treated unequals equally. The Court held:Ordinarily, a tax on land or land revenue is assessed on the actual or the potential productivity of the land sought to be taxed. In other words, the tax has reference to the income actually made, or which could have been made, with due diligence, and, therefore, is levied with due regard to the incidence of the taxation. Under the Act in question we shall take a hypothetical case of a number of persons owning and possessing the same area of land. One makes nothing out of the land, because it is arid desert. The second one does not make any income, but could raise some crop after a disproportionately large investment of labour and capital. A third one, in due course of husbandry, is making the land yield just enough to pay for the incidental expenses and labour charges besides land tax or revenue. The fourth is making large profits, because the land is very fertile and capable of yielding good crops. Under the Act, it is manifest that the fourth category, in our illustration, would easily be able to bear the burden of the tax. The third one may be able to bear the tax. The first and the second one will have to pay from their own pockets, if they could afford the tax. If they cannot afford the tax, the property is liable to be sold, in due process of law, for realisation of the public demand. It is clear, therefore, that inequality is writ large on the Act and is inherent in the very provisions of the taxing section. It is also clear that there is no attempt at classification in the provisions of the Act. Hence, no more need be said as to what could have been the basis for a valid classification. It is one of those cases where the lack of classification creates inequality. It is, therefore, clearly hit by the prohibition to deny equality before the law contained in Article 14 of the Constitution.[at page 91-92]17. Judged by both these parameters, there can be no doubt that the third proviso to Section 254(2A) of the Income Tax Act, introduced by the Finance Act, 2008, would be both arbitrary and discriminatory and, therefore, liable to be struck down as offending Article 14 of the Constitution of India. First and foremost, as has correctly been held in the impugned judgment, unequals are treated equally in that no differentiation is made by the third proviso between the assessees who are responsible for delaying the proceedings and assessees who are not so responsible. This is a little peculiar in that the legislature itself has made the aforesaid differentiation in the second proviso to Section 254(2A) of the Income Tax Act, making it clear that a stay order may be extended upto a period of 365 days upon satisfaction that the delay in disposing of the appeal is not attributable to the assessee. We have already seen as to how, as correctly held by Narang Overseas (supra), the second proviso was introduced by the Finance Act, 2007 to mitigate the rigour of the first proviso to Section 254(2A) of the Income Tax Act in its previous avatar. Ordinarily, the Appellate Tribunal, where possible, is to hear and decide appeals within a period of four years from the end of the financial year in which such appeal is filed. It is only when a stay of the impugned order before the Appellate Tribunal is granted, that the appeal is required to be disposed of within 365 days. So far as the disposal of an appeal by the Appellate Tribunal is concerned, this is a directory provision. However, so far as vacation of stay on expiry of the said period is concerned, this condition becomes mandatory so far as the assessee is concerned. The object sought to be achieved by the third proviso to Section 254(2A) of the Income Tax Act is without doubt the speedy disposal of appeals before the Appellate Tribunal in cases in which a stay has been granted in favour of the assessee. But such object cannot itself be discriminatory or arbitrary, as has been felicitously held in Nagpur Improvement Trust v. Vithal Rao (1973) 3 SCR 39 as follows:It is now well-settled that the State can make a reasonable classification for the purpose of legislation. It is equally well-settled that the classification in order to be reasonable must satisfy two tests: (i) the classification must be founded on intelligible differentia and (ii) the differentia must have a rational relation with the object sought to be achieved by the legislation in question. In this connection it must be borne in mind that the object itself should be lawful. The object itself cannot be discriminatory, for otherwise, for instance, if the object is to discriminate against one section of the minority the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved.[at page 47]Since the object of the third proviso to Section 254(2A) of the Income Tax Act is the automatic vacation of a stay that has been granted on the completion of 365 days, whether or not the assessee is responsible for the delay caused in hearing the appeal, such object being itself discriminatory, in the sense pointed out above, is liable to be struck down as violating Article 14 of the Constitution of India. Also, the said proviso would result in the automatic vacation of a stay upon the expiry of 365 days even if the Appellate Tribunal could not take up the appeal in time for no fault of the assessee. Further, vacation of stay in favour of the revenue would ensue even if the revenue is itself responsible for the delay in hearing the appeal. In this sense, the said proviso is also manifestly arbitrary being a provision which is capricious, irrational and disproportionate so far as the assessee is concerned.18. In fact, in a recent judgment of this Court in Essar Steel India Ltd. Committee of Creditors v. Satish Kumar Gupta (2020) 8 SCC 531 , the word mandatorily in the 2nd proviso inserted through an amendment made to Section 12(3) of the Insolvency and Bankruptcy Code, 2016 was struck down. This Court held:124. Given the fact that timely resolution of stressed assets is a key factor in the successful working of the Code, the only real argument against the amendment is that the time taken in legal proceedings cannot ever be put against the parties before NCLT and NCLAT based upon a Latin maxim which subserves the cause of justice, namely, actus curiae neminem gravabit.125. In Atma Ram Mittal v. Ishwar Singh Punia [Atma Ram Mittal v. Ishwar Singh Punia, (1988) 4 SCC 284 ] , this Court applied the maxim to time taken in legal proceedings under the Haryana Urban (Control of Rent and Eviction) Act, 1973, holding: (SCC pp. 288-89, para 8)8. It is well settled that no man should suffer because of the fault of the court or delay in the procedure. Broom has stated the maxim actus curiae neminem gravabit — an act of court shall prejudice no man. Therefore, having regard to the time normally consumed for adjudication, the ten years exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within ten years and even then within that time it may not be disposed of. That will make the ten years holiday from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purpose of legislation would thus be defeated. Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else.126. Likewise, in Sarah Mathew v. Institute of Cardio Vascular Diseases [Sarah Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62 : (2014) 1 SCC (Cri) 721 ] , this Court held that for the purpose of computing limitation under Section 468 of the Code of Criminal Procedure, 1973 the relevant date is the date of filing of the complaint and not the date on which the Magistrate takes cognizance, applying the aforesaid maxim as follows: (SCC pp. 96-97, para 39)39. As we have already noted in reaching this conclusion, light can be drawn from legal maxims. Legal maxims are referred to in Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559 : 2004 SCC (Cri) 39] , Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 : (2007) 3 SCC (Cri) 388] and Vanka Radhamanohari [Vanka Radhamanohari v. Vanka Venkata Reddy, (1993) 3 SCC 4 : 1993 SCC (Cri) 571] . The object of the criminal law is to punish perpetrators of crime. This is in tune with the well- known legal maxim nullum tempus aut locus occurrit regi, which means that a crime never dies. At the same time, it is also the policy of law to assist the vigilant and not the sleepy. This is expressed in the Latin maxim vigilantibus et non dormientibus, jura subveniunt. Chapter XXXVI CrPC which provides limitation period for certain types of offences for which lesser sentence is provided draws support from this maxim. But, even certain offences such as Section 384 or 465 IPC, which have lesser punishment may have serious social consequences. The provision is, therefore, made for condonation of delay. Treating date of filing of complaint or date of initiation of proceedings as the relevant date for computing limitation under Section 468 of the Code is supported by the legal maxim actus curiae neminem gravabit which means that the act of court shall prejudice no man. It bears repetition to state that the courts inaction in taking cognizance i.e. courts inaction in applying mind to the suspected offence should not be allowed to cause prejudice to a diligent complainant. Chapter XXXVI thus presents the interplay of these three legal maxims. The provisions of this Chapter, however, are not interpreted solely on the basis of these maxims. They only serve as guiding principles.127. Both these judgments in Atma Ram Mittal [Atma Ram Mittal v. Ishwar Singh Punia, (1988) 4 SCC 284 ] and Sarah Mathew [Sarah Mathew v. Institute of Cardio Vascular Diseases, (2014) 2 SCC 62 : (2014) 1 SCC (Cri) 721 ] have been followed in Neeraj Kumar Sainy v. State of U.P. [Neeraj Kumar Sainy v. State of U.P., (2017) 14 SCC 136 : 8 SCEC 454] , SCC paras 29 and 32. Given the fact that the time taken in legal proceedings cannot possibly harm a litigant if the Tribunal itself cannot take up the litigants case within the requisite period for no fault of the litigant, a provision which mandatorily requires the CIRP to end by a certain date — without any exception thereto — may well be an excessive interference with a litigants fundamental right to non-arbitrary treatment under Article 14 and an excessive, arbitrary and therefore unreasonable restriction on a litigants fundamental right to carry on business under Article 19(1)(g) of the Constitution of India. This being the case, we would ordinarily have struck down the provision in its entirety. However, that would then throw the baby out with the bath water, inasmuch as the time taken in legal proceedings is certainly an important factor which causes delay, and which has made previous statutory experiments fail as we have seen from Madras Petrochem [Madras Petrochem Ltd. v. BIFR, (2016) 4 SCC 1 : (2016) 2 SCC (Civ) 478] . Thus, while leaving the provision otherwise intact, we strike down the word mandatorily as being manifestly arbitrary under Article 14 of the Constitution of India and as being an excessive and unreasonable restriction on the litigants right to carry on business under Article 19(1)(g) of the Constitution. The effect of this declaration is that ordinarily the time taken in relation to the corporate resolution process of the corporate debtor must be completed within the outer limit of 330 days from the insolvency commencement date, including extensions and the time taken in legal proceedings. However, on the facts of a given case, if it can be shown to the Adjudicating Authority and/or Appellate Tribunal under the Code that only a short period is left for completion of the insolvency resolution process beyond 330 days, and that it would be in the interest of all stakeholders that the corporate debtor be put back on its feet instead of being sent into liquidation and that the time taken in legal proceedings is largely due to factors owing to which the fault cannot be ascribed to the litigants before the Adjudicating Authority and/or Appellate Tribunal, the delay or a large part thereof being attributable to the tardy process of the Adjudicating Authority and/or the Appellate Tribunal itself, it may be open in such cases for the Adjudicating Authority and/or Appellate Tribunal to extend time beyond 330 days. Likewise, even under the newly added proviso to Section 12, if by reason of all the aforesaid factors the grace period of 90 days from the date of commencement of the Amending Act of 2019 is exceeded, there again a discretion can be exercised by the Adjudicating Authority and/or Appellate Tribunal to further extend time keeping the aforesaid parameters in mind. It is only in such exceptional cases that time can be extended, the general rule being that 330 days is the outer limit within which resolution of the stressed assets of the corporate debtor must take place beyond which the corporate debtor is to be driven into liquidation.19. Coming to the arguments of the learned ASG, his reliance upon passages contained in M/s M. Ramnarain (P) Ltd. v. State Trading Corpn. of India Ltd. (1983) 3 SCC 75 ( paragraph 16) and M. Janardhana Rao v. CIT (2005) 2 SCC 324 ( paragraph 14) do not carry the matter any further. In M/s M. Ramnarain (supra) what was held in paragraph 16 was that the statutory right of appeal conferred on a party may be lost by application of the provisions of some law or by the conduct of the party. This was held in the context of the provisions of Order XX Rule 11 of the Code of Civil Procedure, 1908, which was held by the High Court in that case to deprive the Appellant of his right to prefer an appeal against the main decree. The High Court judgment was set aside, this Court holding:21. Though by virtue of the provisions of the Original Side Rules of the Bombay High Court the earlier appeal could be permitted to be filed without a certified copy of the decree or order, the appeal would not be valid and competent unless the further requirement of filing the certified copy had been complied with. At the time when the earlier Appeal No. 36 of 1981 had been withdrawn, the certified copy of the decree had not been filed. The said appeal without the certified copy of the decree remained an incompetent appeal. The withdrawal of an incompetent appeal which will indeed be no appeal in the eye of law cannot in any way prejudice the right of any appellant to file a proper appeal, if the right of appeal is not otherwise lost by lapse of time or for any other valid reason. We are, therefore, of the opinion that the provisions contained in Order 20 Rule 11 of the Code do not in the facts and circumstances of the present case deprive the appellant of his right to file an appeal against the decree.This judgment is distinguishable as it does not deal with the constitutional validity of an appeal provision.20. Likewise, the judgment in Janardhana Rao (supra), which held that a right of appeal is neither a natural nor inherent right but has to be regulated in accordance with the law in force at the relevant time, the conditions of the appellate provision having to be strictly fulfilled, is also a judgment which has no reference to the constitutional validity of an appeal provision being assailed. In point of fact, this Courts judgment in Mardia Chemicals (supra) comes nearer home when the constitutional validity of a condition for the exercise of the right of appeal is assailed. This was felicitously put by this Court as follows:60. The requirement of pre-deposit of any amount at the first instance of proceedings is not to be found in any of the decisions cited on behalf of the respondent. All these cases relate to appeals. The amount of deposit of 75% of the demand, at the initial proceeding itself sounds unreasonable and oppressive, more particularly when the secured assets/the management thereof along with the right to transfer such interest has been taken over by the secured creditor or in some cases property is also sold. Requirement of deposit of such a heavy amount on the basis of a one-sided claim alone, cannot be said to be a reasonable condition at the first instance itself before start of adjudication of the dispute. Merely giving power to the Tribunal to waive or reduce the amount, does not cure the inherent infirmity leaning one-sidedly in favour of the party, who, so far has alone been the party to decide the amount and the fact of default and classifying the dues as NPAs without participation/association of the borrower in the process. Such an onerous and oppressive condition should not be left operative in expectation of reasonable exercise of discretion by the authority concerned. Placed in a situation as indicated above, where it may not be possible for the borrower to raise any amount to make the deposit, his secured assets having already been taken possession of or sold, such a rider to approach the Tribunal at the first instance of proceedings, captioned as appeal, renders the remedy illusory and nugatory.61. In the case of Seth Nand Lal [1980 Supp SCC 574] while considering the question of validity of pre-deposit before availing the right of appeal the Court held: (SCC p. 590, para 22)[R]ight of appeal is a creature of the statute and while granting the right the legislature can impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory.This Court ultimately struck down Section 17(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as SARFAESI Act) holding that in the circumstances mentioned, the deposit of 75% of the amount claimed as a pre-condition to the hearing of an appeal before the Debt Recovery Tribunal under Section 17 of the SARFAESI Act was onerous, oppressive, unreasonable, arbitrary and hence violative of Article 14 of the Constitution of India.22. We have already seen how unequals have been treated equally so far as assessees who are responsible for delaying appellate proceedings and those who are not so responsible, resulting in a violation of Article 14 of the Constitution of India. Also, the expression permissible policy of taxation would refer to a policy that is constitutionally permissible. If the policy is itself arbitrary and discriminatory, such policy will have to be struck down, as has been found in paragraph 17 above.23. The other judgment relied upon by the learned ASG is the judgment in N. Venugopala Ravi Varma Rajah v. Union of India (1969) 1 SCC 681 ( paragraph 14). This judgment speaks of a larger play in the joints to legislative discretion in the matter of classification being granted when such legislation is a tax legislation. The caveat applied in this paragraph is that a taxing statute may contravene Article 14 of the Constitution of India if it seeks to impose upon the same class of property, persons, etc., something which leads to obvious inequality. It is this caveat that has been applied to the third proviso to Section 254(2A) of the Income Tax Act.24. The learned ASG then relied upon Commr. of Customs v. Dilip Kumar & Co. (2018) 9 SCC 1 ( paragraphs 32 to 34). This judgment only reiterates the well-settled principle that in the field of taxation hardship or equity has no role to play in determining eligibility to tax. The present appeals have nothing to do with determining eligibility to tax. They have only to do with a frontal challenge to the constitutional validity of an appeal provision in the Income Tax Act. Also, it is important to remember that the golden rule of interpretation is not given a go-by when it comes to interpretation of tax statutes. This Court in CIT v. J.H. Gotla (1985) 4 SCC 343 , put it well when it said:46. Where the plain literal interpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the Legislature, the Court might modify the language used by the Legislature so as to achieve the intention of the Legislature and produce a rational construction. The task of interpretation of a statutory provision is an attempt to discover the intention of the Legislature from the language used. It is necessary to remember that language is at best an imperfect instrument for the expression of human intention. It is well to remember the warning administered by Judge Learned Hand that one should not make a fortress out of dictionary but remember that statutes always have some purpose or object to accomplish and sympathetic and imaginative discovery is the surest guide to their meaning.47. We have noted the object of Section 16(3) of the Act which has to be read in conjunction with Section 24(2) in this case for the present purpose. If the purpose of a particular provision is easily discernible from the whole scheme of the Act which in this case is, to counteract the effect of the transfer of assets so far as computation of income of the assessee is concerned then bearing that purpose in mind, we should find out the intention from the language used by the Legislature and if strict literal construction leads to an absurd result i.e. result not intended to be subserved by the object of the legislation found in the manner indicated before, and if another construction is possible apart from strict literal construction then that construction should be preferred to the strict literal construction. Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction. Furthermore, in the instant case we are dealing with an artificial liability created for counteracting the effect only of attempts by the assessee to reduce tax liability by transfer. It has also been noted how for various purposes the business from which profit is included or loss is set off is treated in various situations as assessees income. The scheme of the Act as worked out has been noted before.25. The law laid down by the impugned judgment of the Delhi High Court in M/s Pepsi Foods Ltd. (supra) is correct. | 1 | 10,871 | 8,419 | ### 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:
In the case of Seth Nand Lal [1980 Supp SCC 574] while considering the question of validity of pre-deposit before availing the right of appeal the Court held: (SCC p. 590, para 22) [R]ight of appeal is a creature of the statute and while granting the right the legislature can impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory. [emphasis supplied] This Court ultimately struck down Section 17(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as SARFAESI Act) holding that in the circumstances mentioned, the deposit of 75% of the amount claimed as a pre-condition to the hearing of an appeal before the Debt Recovery Tribunal under Section 17 of the SARFAESI Act was onerous, oppressive, unreasonable, arbitrary and hence violative of Article 14 of the Constitution of India. 21. The learned ASG then relied upon judgments which indicate that when Article 14 of the Constitution of India is applied to tax legislation, greater freedom in the joints must be allowed by the Court in adjudging the constitutional validity of the same. For this purpose, he relied upon State of M.P. v. Bhopal Sugar Industries Ltd. (1964) 6 SCR 846. In this case, the judgment of this Court held that if the statute discloses a permissible policy of taxation, the Courts will uphold it. If, however, the tax was imposed deliberately with the object of differentiating between persons similarly circumstanced, such tax would be liable to be struck down. 22. We have already seen how unequals have been treated equally so far as assessees who are responsible for delaying appellate proceedings and those who are not so responsible, resulting in a violation of Article 14 of the Constitution of India. Also, the expression permissible policy of taxation would refer to a policy that is constitutionally permissible. If the policy is itself arbitrary and discriminatory, such policy will have to be struck down, as has been found in paragraph 17 above. 23. The other judgment relied upon by the learned ASG is the judgment in N. Venugopala Ravi Varma Rajah v. Union of India (1969) 1 SCC 681 ( paragraph 14). This judgment speaks of a larger play in the joints to legislative discretion in the matter of classification being granted when such legislation is a tax legislation. The caveat applied in this paragraph is that a taxing statute may contravene Article 14 of the Constitution of India if it seeks to impose upon the same class of property, persons, etc., something which leads to obvious inequality. It is this caveat that has been applied to the third proviso to Section 254(2A) of the Income Tax Act. 24. The learned ASG then relied upon Commr. of Customs v. Dilip Kumar & Co. (2018) 9 SCC 1 ( paragraphs 32 to 34). This judgment only reiterates the well-settled principle that in the field of taxation hardship or equity has no role to play in determining eligibility to tax. The present appeals have nothing to do with determining eligibility to tax. They have only to do with a frontal challenge to the constitutional validity of an appeal provision in the Income Tax Act. Also, it is important to remember that the golden rule of interpretation is not given a go-by when it comes to interpretation of tax statutes. This Court in CIT v. J.H. Gotla (1985) 4 SCC 343 , put it well when it said: 46. Where the plain literal interpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the Legislature, the Court might modify the language used by the Legislature so as to achieve the intention of the Legislature and produce a rational construction. The task of interpretation of a statutory provision is an attempt to discover the intention of the Legislature from the language used. It is necessary to remember that language is at best an imperfect instrument for the expression of human intention. It is well to remember the warning administered by Judge Learned Hand that one should not make a fortress out of dictionary but remember that statutes always have some purpose or object to accomplish and sympathetic and imaginative discovery is the surest guide to their meaning. 47. We have noted the object of Section 16(3) of the Act which has to be read in conjunction with Section 24(2) in this case for the present purpose. If the purpose of a particular provision is easily discernible from the whole scheme of the Act which in this case is, to counteract the effect of the transfer of assets so far as computation of income of the assessee is concerned then bearing that purpose in mind, we should find out the intention from the language used by the Legislature and if strict literal construction leads to an absurd result i.e. result not intended to be subserved by the object of the legislation found in the manner indicated before, and if another construction is possible apart from strict literal construction then that construction should be preferred to the strict literal construction. Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction. Furthermore, in the instant case we are dealing with an artificial liability created for counteracting the effect only of attempts by the assessee to reduce tax liability by transfer. It has also been noted how for various purposes the business from which profit is included or loss is set off is treated in various situations as assessees income. The scheme of the Act as worked out has been noted before. 25. The law laid down by the impugned judgment of the Delhi High Court in M/s Pepsi Foods Ltd. (supra) is correct.
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the inherent infirmity leaning one-sidedly in favour of the party, who, so far has alone been the party to decide the amount and the fact of default and classifying the dues as NPAs without participation/association of the borrower in the process. Such an onerous and oppressive condition should not be left operative in expectation of reasonable exercise of discretion by the authority concerned. Placed in a situation as indicated above, where it may not be possible for the borrower to raise any amount to make the deposit, his secured assets having already been taken possession of or sold, such a rider to approach the Tribunal at the first instance of proceedings, captioned as appeal, renders the remedy illusory and nugatory.61. In the case of Seth Nand Lal [1980 Supp SCC 574] while considering the question of validity of pre-deposit before availing the right of appeal the Court held: (SCC p. 590, para 22)[R]ight of appeal is a creature of the statute and while granting the right the legislature can impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory.This Court ultimately struck down Section 17(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as SARFAESI Act) holding that in the circumstances mentioned, the deposit of 75% of the amount claimed as a pre-condition to the hearing of an appeal before the Debt Recovery Tribunal under Section 17 of the SARFAESI Act was onerous, oppressive, unreasonable, arbitrary and hence violative of Article 14 of the Constitution of India.22. We have already seen how unequals have been treated equally so far as assessees who are responsible for delaying appellate proceedings and those who are not so responsible, resulting in a violation of Article 14 of the Constitution of India. Also, the expression permissible policy of taxation would refer to a policy that is constitutionally permissible. If the policy is itself arbitrary and discriminatory, such policy will have to be struck down, as has been found in paragraph 17 above.23. The other judgment relied upon by the learned ASG is the judgment in N. Venugopala Ravi Varma Rajah v. Union of India (1969) 1 SCC 681 ( paragraph 14). This judgment speaks of a larger play in the joints to legislative discretion in the matter of classification being granted when such legislation is a tax legislation. The caveat applied in this paragraph is that a taxing statute may contravene Article 14 of the Constitution of India if it seeks to impose upon the same class of property, persons, etc., something which leads to obvious inequality. It is this caveat that has been applied to the third proviso to Section 254(2A) of the Income Tax Act.24. The learned ASG then relied upon Commr. of Customs v. Dilip Kumar & Co. (2018) 9 SCC 1 ( paragraphs 32 to 34). This judgment only reiterates the well-settled principle that in the field of taxation hardship or equity has no role to play in determining eligibility to tax. The present appeals have nothing to do with determining eligibility to tax. They have only to do with a frontal challenge to the constitutional validity of an appeal provision in the Income Tax Act. Also, it is important to remember that the golden rule of interpretation is not given a go-by when it comes to interpretation of tax statutes. This Court in CIT v. J.H. Gotla (1985) 4 SCC 343 , put it well when it said:46. Where the plain literal interpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the Legislature, the Court might modify the language used by the Legislature so as to achieve the intention of the Legislature and produce a rational construction. The task of interpretation of a statutory provision is an attempt to discover the intention of the Legislature from the language used. It is necessary to remember that language is at best an imperfect instrument for the expression of human intention. It is well to remember the warning administered by Judge Learned Hand that one should not make a fortress out of dictionary but remember that statutes always have some purpose or object to accomplish and sympathetic and imaginative discovery is the surest guide to their meaning.47. We have noted the object of Section 16(3) of the Act which has to be read in conjunction with Section 24(2) in this case for the present purpose. If the purpose of a particular provision is easily discernible from the whole scheme of the Act which in this case is, to counteract the effect of the transfer of assets so far as computation of income of the assessee is concerned then bearing that purpose in mind, we should find out the intention from the language used by the Legislature and if strict literal construction leads to an absurd result i.e. result not intended to be subserved by the object of the legislation found in the manner indicated before, and if another construction is possible apart from strict literal construction then that construction should be preferred to the strict literal construction. Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction. Furthermore, in the instant case we are dealing with an artificial liability created for counteracting the effect only of attempts by the assessee to reduce tax liability by transfer. It has also been noted how for various purposes the business from which profit is included or loss is set off is treated in various situations as assessees income. The scheme of the Act as worked out has been noted before.25. The law laid down by the impugned judgment of the Delhi High Court in M/s Pepsi Foods Ltd. (supra) is correct.
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State Bank Of India Vs. M/S. Ranjan Chemicals Ltd. | set off against any amount that may be found due to the bank on the basis of the loan transaction including the cash credit facility extended by it to the company. The decree to the one or the other would depend upon an ascertainment of the rights and obligations arising out of the loan transaction and the state of the loan account. We are therefore of the view that the two claims are inextricably inter linked. The consequences arising out of the respective claims are referable to the cause of action arising out of the vary transactions between the bank and the company. We have already indicated that the claim of the company is in essence a claim for set off and/or a counter claim, which could be tried by the Debt Recovery Tribunal in view of the amended Section 19 of the Act.10. A joint trial can be ordered by the court if it appears to it that some common question of law or fact arises in both proceedings or that the right to relief claimed in them are in respect of or arise out of the same transaction or series of transactions or that for some other reason it is desirable to make an order for joint trial. Where the plaintiff in one action is the same person as the defendant in another action, if one action can be ordered to stand as a counter claim in the consolidated action, a joint trial can be ordered. An order for joint trial is considered to be useful in that, it will save the expenses of two attendance by counsel and witnesses and the trial judge will be enabled to try the two actions at the same time and take common evidence in respect of both the claims. If therefore the claim made by the Company can be tried as a counter claim by the Debt Recovery Tribunal, the Court can order joint trial on the basis of the above considerations. It does not appear to be necessary that all the questions or issues that arise should be common to both actions before a joint trial can be ordered. It will be sufficient if some of the issues are common and some of the evidence to be let in is also common, especially when the two actions arise out of the same transaction or series of transactions.11. A joint trial is ordered when a Court finds that the ordering of such a trial, would avoid separate overlapping evidence being taken in the two causes put in suit and it will be more convenient to try them together in the interests of the parties and in the interests of an effective trial of the causes. This power inheres in the Court as an inherent power. It is not possible to accept the argument that every time the Court transfers a suit to another court or orders a joint trial, it has to have the consent of the parties. A Court has the power in an appropriate case to transfer a suit for being tried with another if the circumstances warranted and justified it. In the light of our conclusion that the claim of the company in the suit could be considered to be a claim for set off and a counter claim within the meaning of Section 19 of the Act, the only question is whether in the interests of justice, convenience of parties and avoidance of multiplicity of proceedings, the suit should be transferred to the Debt Recovery Tribunal for being tried jointly with the application filed by the bank as a cross suit. Obviously, the proceedings before the Debt Recovery Tribunal could not be transferred to the civil Court since that is a proceeding before a Tribunal specially constituted by the Act and the same has to be tried only in the manner provided by that Act and by the Tribunal created by that Act. Therefore, the only other alternative would be to transfer the suit to the Tribunal in case that is found warranted or justified.12. It is clear that in both proceedings what are involved are, the nature of the loan transaction and the cash credit facility extended, the relationship that has spring out of the transactions, the right and obligations arising out of them, their breach if any, who is responsible for the breach and its extent. The same basic evidence will have to be taken in both the proceedings. The accounts of the bank will have to be scrutinized not only to ascertain the sum, if any, due to the bank but also to ascertain as to when and in what manner the cash credit facility was permitted to be availed of by the company. Of course, evidence will have to be taken on whether there was any violation of conditions or latches on the part of the bank in fulfilling its obligations causing damage to the company. At least a part of the evidence will be common. Duplication of evidence could be avoided if the two actions are tried together. If a decree is granted to the bank on the basis of its accounts, and the damages, if any, is decreed in favour of the company, a set off could be directed and an ultimate order or decree passed in favour of the bank or the company. In such a situation, we are of the view that this is a fit case where the two actions should be ordered to be tried together.13. In this view, we are satisfied that the trial court and the High Court have failed to exercise the jurisdiction vested in them by law in refusing to transfer the suit to the Debt Recovery Tribunal, Patna. They have not considered the question whether it will be fit and proper to order a joint trial of the two actions. We find that it is not only fit and proper but also just and necessary to have the two causes tried together. | 1[ds]The elements of a cause of action are: first, the breach of duty owing by one person to another and; second, the damage resulting to the other from the breach, or the fact or combination of facts which gives rise to a right to sue. Viewed thus, it cannot but be said that both claims have arisen out of the same transaction or out of the same relationship that came into existence between the bank and the company and the alleged breach of obligations by one or the other. We have, therefore, no hesitation in holding that the two actions have sprung out of the same cause ofis clear from sub sections 6 to 11 of Section 19 of the Act that the Recovery Tribunal has the jurisdiction to entertain a claim of set off or a counter claim arising out of the same cause of action and has also the power to treat the counter claim as a cross suit. Therefore, if the claim of the company in the suit partakes the character of a cross action founded on the same cause of action, the same could be tried by the Debt Recovery Tribunal. In United Bank of India, Calcutta vs. Abhijit Tea Co. Pvt. Ltd. And others [(2000) 7 SCC 357] , this Court interpreted the expression counter claim in sub Sections 8 to 11 of Section 19 as including even a claim made in an independent suit and a claim for damages based on the same transaction as being broadly a plea of set off falling under sub Sections 6 and 7 of Section 19 of the Act. With respect, we see no reason to differ from the reasoning and conclusion therein in that regard. It is therefore clear that the claim made by the company in the suit filed by it could be considered as a claim for set off and/or as a counter claim within the meaning of Section 19 of the Act.6. Even otherwise, after the amendment of Order VIII Rule 6A of the Code of Civil Procedure by Act 104 of 1976, for maintaining athe cross action need not even arise out of the same cause of action or be intrinsically connected with the cause of action sued upon. Any right or claim in respect of a cause of action accruing to the defendant against the plaintiff can be made the subject matter of aSection 19(8) of the Act is also on the same lines. Therefore, there can be no objection to treating a claim in favour of the Company arising out of the Loan transaction and/or rehabilitation package as ain the application filed by the Bank before the Debt Recovery Tribunal.On going through the application filed by the bank and the plaint filed by the company in the present case, we find that both causes of action arise out of a cash credit facility extended by the bank to the company and while the claim by the bank is for recovery of amounts due under that account, the suit of the company is for recovery of compensation based on the alleged failure of the bank to fulfil its obligations under the cash credit facility in time and in a meaningful manner. Obviously, if the company is able to establish its claim, the amount that may be awarded to it by way of damages has necessarily to be set off against any amount that may be found due to the bank on the basis of the loan transaction including the cash credit facility extended by it to the company. The decree to the one or the other would depend upon an ascertainment of the rights and obligations arising out of the loan transaction and the state of the loan account. We are therefore of the view that the two claims are inextricably inter linked. The consequences arising out of the respective claims are referable to the cause of action arising out of the vary transactions between the bank and the company. We have already indicated that the claim of the company is in essence a claim for set off and/or a counter claim, which could be tried by the Debt Recovery Tribunal in view of the amended Section 19 of the Act.10. A joint trial can be ordered by the court if it appears to it that some common question of law or fact arises in both proceedings or that the right to relief claimed in them are in respect of or arise out of the same transaction or series of transactions or that for some other reason it is desirable to make an order for joint trial. Where the plaintiff in one action is the same person as the defendant in another action, if one action can be ordered to stand as a counter claim in the consolidated action, a joint trial can be ordered. An order for joint trial is considered to be useful in that, it will save the expenses of two attendance by counsel and witnesses and the trial judge will be enabled to try the two actions at the same time and take common evidence in respect of both the claims. If therefore the claim made by the Company can be tried as a counter claim by the Debt Recovery Tribunal, the Court can order joint trial on the basis of the above considerations. It does not appear to be necessary that all the questions or issues that arise should be common to both actions before a joint trial can be ordered. It will be sufficient if some of the issues are common and some of the evidence to be let in is also common, especially when the two actions arise out of the same transaction or series of transactions.11. A joint trial is ordered when a Court finds that the ordering of such a trial, would avoid separate overlapping evidence being taken in the two causes put in suit and it will be more convenient to try them together in the interests of the parties and in the interests of an effective trial of the causes. This power inheres in the Court as an inherent power. It is not possible to accept the argument that every time the Court transfers a suit to another court or orders a joint trial, it has to have the consent of the parties. A Court has the power in an appropriate case to transfer a suit for being tried with another if the circumstances warranted and justified it. In the light of our conclusion that the claim of the company in the suit could be considered to be a claim for set off and a counter claim within the meaning of Section 19 of the Act, the only question is whether in the interests of justice, convenience of parties and avoidance of multiplicity of proceedings, the suit should be transferred to the Debt Recovery Tribunal for being tried jointly with the application filed by the bank as a cross suit. Obviously, the proceedings before the Debt Recovery Tribunal could not be transferred to the civil Court since that is a proceeding before a Tribunal specially constituted by the Act and the same has to be tried only in the manner provided by that Act and by the Tribunal created by that Act. Therefore, the only other alternative would be to transfer the suit to the Tribunal in case that is found warranted or justified.12. It is clear that in both proceedings what are involved are, the nature of the loan transaction and the cash credit facility extended, the relationship that has spring out of the transactions, the right and obligations arising out of them, their breach if any, who is responsible for the breach and its extent. The same basic evidence will have to be taken in both the proceedings. The accounts of the bank will have to be scrutinized not only to ascertain the sum, if any, due to the bank but also to ascertain as to when and in what manner the cash credit facility was permitted to be availed of by the company. Of course, evidence will have to be taken on whether there was any violation of conditions or latches on the part of the bank in fulfilling its obligations causing damage to the company. At least a part of the evidence will be common. Duplication of evidence could be avoided if the two actions are tried together. If a decree is granted to the bank on the basis of its accounts, and the damages, if any, is decreed in favour of the company, a set off could be directed and an ultimate order or decree passed in favour of the bank or the company. In such a situation, we are of the view that this is a fit case where the two actions should be ordered to be tried together.13. In this view, we are satisfied that the trial court and the High Court have failed to exercise the jurisdiction vested in them by law in refusing to transfer the suit to the Debt Recovery Tribunal, Patna. They have not considered the question whether it will be fit and proper to order a joint trial of the two actions. We find that it is not only fit and proper but also just and necessary to have the two causes tried together | 1 | 3,282 | 1,663 | ### Instruction:
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set off against any amount that may be found due to the bank on the basis of the loan transaction including the cash credit facility extended by it to the company. The decree to the one or the other would depend upon an ascertainment of the rights and obligations arising out of the loan transaction and the state of the loan account. We are therefore of the view that the two claims are inextricably inter linked. The consequences arising out of the respective claims are referable to the cause of action arising out of the vary transactions between the bank and the company. We have already indicated that the claim of the company is in essence a claim for set off and/or a counter claim, which could be tried by the Debt Recovery Tribunal in view of the amended Section 19 of the Act.10. A joint trial can be ordered by the court if it appears to it that some common question of law or fact arises in both proceedings or that the right to relief claimed in them are in respect of or arise out of the same transaction or series of transactions or that for some other reason it is desirable to make an order for joint trial. Where the plaintiff in one action is the same person as the defendant in another action, if one action can be ordered to stand as a counter claim in the consolidated action, a joint trial can be ordered. An order for joint trial is considered to be useful in that, it will save the expenses of two attendance by counsel and witnesses and the trial judge will be enabled to try the two actions at the same time and take common evidence in respect of both the claims. If therefore the claim made by the Company can be tried as a counter claim by the Debt Recovery Tribunal, the Court can order joint trial on the basis of the above considerations. It does not appear to be necessary that all the questions or issues that arise should be common to both actions before a joint trial can be ordered. It will be sufficient if some of the issues are common and some of the evidence to be let in is also common, especially when the two actions arise out of the same transaction or series of transactions.11. A joint trial is ordered when a Court finds that the ordering of such a trial, would avoid separate overlapping evidence being taken in the two causes put in suit and it will be more convenient to try them together in the interests of the parties and in the interests of an effective trial of the causes. This power inheres in the Court as an inherent power. It is not possible to accept the argument that every time the Court transfers a suit to another court or orders a joint trial, it has to have the consent of the parties. A Court has the power in an appropriate case to transfer a suit for being tried with another if the circumstances warranted and justified it. In the light of our conclusion that the claim of the company in the suit could be considered to be a claim for set off and a counter claim within the meaning of Section 19 of the Act, the only question is whether in the interests of justice, convenience of parties and avoidance of multiplicity of proceedings, the suit should be transferred to the Debt Recovery Tribunal for being tried jointly with the application filed by the bank as a cross suit. Obviously, the proceedings before the Debt Recovery Tribunal could not be transferred to the civil Court since that is a proceeding before a Tribunal specially constituted by the Act and the same has to be tried only in the manner provided by that Act and by the Tribunal created by that Act. Therefore, the only other alternative would be to transfer the suit to the Tribunal in case that is found warranted or justified.12. It is clear that in both proceedings what are involved are, the nature of the loan transaction and the cash credit facility extended, the relationship that has spring out of the transactions, the right and obligations arising out of them, their breach if any, who is responsible for the breach and its extent. The same basic evidence will have to be taken in both the proceedings. The accounts of the bank will have to be scrutinized not only to ascertain the sum, if any, due to the bank but also to ascertain as to when and in what manner the cash credit facility was permitted to be availed of by the company. Of course, evidence will have to be taken on whether there was any violation of conditions or latches on the part of the bank in fulfilling its obligations causing damage to the company. At least a part of the evidence will be common. Duplication of evidence could be avoided if the two actions are tried together. If a decree is granted to the bank on the basis of its accounts, and the damages, if any, is decreed in favour of the company, a set off could be directed and an ultimate order or decree passed in favour of the bank or the company. In such a situation, we are of the view that this is a fit case where the two actions should be ordered to be tried together.13. In this view, we are satisfied that the trial court and the High Court have failed to exercise the jurisdiction vested in them by law in refusing to transfer the suit to the Debt Recovery Tribunal, Patna. They have not considered the question whether it will be fit and proper to order a joint trial of the two actions. We find that it is not only fit and proper but also just and necessary to have the two causes tried together.
### Response:
1
### Explanation:
set off against any amount that may be found due to the bank on the basis of the loan transaction including the cash credit facility extended by it to the company. The decree to the one or the other would depend upon an ascertainment of the rights and obligations arising out of the loan transaction and the state of the loan account. We are therefore of the view that the two claims are inextricably inter linked. The consequences arising out of the respective claims are referable to the cause of action arising out of the vary transactions between the bank and the company. We have already indicated that the claim of the company is in essence a claim for set off and/or a counter claim, which could be tried by the Debt Recovery Tribunal in view of the amended Section 19 of the Act.10. A joint trial can be ordered by the court if it appears to it that some common question of law or fact arises in both proceedings or that the right to relief claimed in them are in respect of or arise out of the same transaction or series of transactions or that for some other reason it is desirable to make an order for joint trial. Where the plaintiff in one action is the same person as the defendant in another action, if one action can be ordered to stand as a counter claim in the consolidated action, a joint trial can be ordered. An order for joint trial is considered to be useful in that, it will save the expenses of two attendance by counsel and witnesses and the trial judge will be enabled to try the two actions at the same time and take common evidence in respect of both the claims. If therefore the claim made by the Company can be tried as a counter claim by the Debt Recovery Tribunal, the Court can order joint trial on the basis of the above considerations. It does not appear to be necessary that all the questions or issues that arise should be common to both actions before a joint trial can be ordered. It will be sufficient if some of the issues are common and some of the evidence to be let in is also common, especially when the two actions arise out of the same transaction or series of transactions.11. A joint trial is ordered when a Court finds that the ordering of such a trial, would avoid separate overlapping evidence being taken in the two causes put in suit and it will be more convenient to try them together in the interests of the parties and in the interests of an effective trial of the causes. This power inheres in the Court as an inherent power. It is not possible to accept the argument that every time the Court transfers a suit to another court or orders a joint trial, it has to have the consent of the parties. A Court has the power in an appropriate case to transfer a suit for being tried with another if the circumstances warranted and justified it. In the light of our conclusion that the claim of the company in the suit could be considered to be a claim for set off and a counter claim within the meaning of Section 19 of the Act, the only question is whether in the interests of justice, convenience of parties and avoidance of multiplicity of proceedings, the suit should be transferred to the Debt Recovery Tribunal for being tried jointly with the application filed by the bank as a cross suit. Obviously, the proceedings before the Debt Recovery Tribunal could not be transferred to the civil Court since that is a proceeding before a Tribunal specially constituted by the Act and the same has to be tried only in the manner provided by that Act and by the Tribunal created by that Act. Therefore, the only other alternative would be to transfer the suit to the Tribunal in case that is found warranted or justified.12. It is clear that in both proceedings what are involved are, the nature of the loan transaction and the cash credit facility extended, the relationship that has spring out of the transactions, the right and obligations arising out of them, their breach if any, who is responsible for the breach and its extent. The same basic evidence will have to be taken in both the proceedings. The accounts of the bank will have to be scrutinized not only to ascertain the sum, if any, due to the bank but also to ascertain as to when and in what manner the cash credit facility was permitted to be availed of by the company. Of course, evidence will have to be taken on whether there was any violation of conditions or latches on the part of the bank in fulfilling its obligations causing damage to the company. At least a part of the evidence will be common. Duplication of evidence could be avoided if the two actions are tried together. If a decree is granted to the bank on the basis of its accounts, and the damages, if any, is decreed in favour of the company, a set off could be directed and an ultimate order or decree passed in favour of the bank or the company. In such a situation, we are of the view that this is a fit case where the two actions should be ordered to be tried together.13. In this view, we are satisfied that the trial court and the High Court have failed to exercise the jurisdiction vested in them by law in refusing to transfer the suit to the Debt Recovery Tribunal, Patna. They have not considered the question whether it will be fit and proper to order a joint trial of the two actions. We find that it is not only fit and proper but also just and necessary to have the two causes tried together
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Smt. T.Gayatri Devi Vs. Dr.Tallepaneni Sreekanth | 1. Leave granted. 2. This appeal has been filed challenging the order passed by the High Court of Judicature of Andhra Pradesh at Hyderabad dated 23.07.2012 by which the learned Single Judge was pleased to reject the petition filed by the appellant for transfer of a divorce proceeding instituted by the respondent-husband bearing O.P. No. 1256/2011 which is pending trial in the Family Court, Hyderabad to the Family Court at Kakinada. 3. The High Court appears to have rejected the petition essentially on the ground that the appellant-wife is not a student depending upon her parents and is stated to be employed in a private sector as Company Secretary and, therefore, the High Court held that it was not a case of a destitute woman depending on the charity of her parents and taking shelter in her parental house so as to allow the transfer of the divorce proceeding on the ground that she could not afford the expenditure of travel and accommodation at Hyderabad. 4. We find the approach of the High Court and the reasons assigned clearly unsustainable as the High Court appears to have lost sight of the fact that the respondent-husband on the one hand has filed a divorce proceeding against the appellant-wife and further expects the same to be tried at a place of his choice, which is Hyderabad. The High Court refused to transfer it to the place where the wife is working on the ground that the petitioner- wife is not an indigent lady and she is capable of contesting the suit by undertaking journey from Kakinada to Hyderabad. The learned Single Judge has completely overlooked the implication of this view as on the one hand the appellant-wife would be expected to contest the divorce proceeding to her detriment and at the same time would have to undertake the journey from Kakinada to Hyderabad which is bound to affect discharge of her professional duties where she is working as apart from the journey she would also have to seek leave which surely would affect her performance in the company further and put her job at risk. The import of the order clearly is that on the one hand the appellant-wife should live alone, maintain herself by living at her parents place and on the top of it give more attention to contest the divorce proceeding rather than looking to her job on which she is surviving in absence of any support from her husband who not only seeks a decree of divorce but also at convenience by choosing a place of his choice to secure a decree of divorce. 5. Considering the implication of the aforesaid situation and circumstance, the view taken by the High Court refusing to transfer the case is fit to be struck down as illegal, devoid of practical fallout and wisdom. 6. | 1[ds]We find the approach of the High Court and the reasons assigned clearly unsustainable as the High Court appears to have lost sight of the fact that the respondent-husband on the one hand has filed a divorce proceeding against the appellant-wife and further expects the same to be tried at a place of his choice, which is Hyderabad. The High Court refused to transfer it to the place where the wife is working on the ground that the petitioner- wife is not an indigent lady and she is capable of contesting the suit by undertaking journey from Kakinada to Hyderabad. The learned Single Judge has completely overlooked the implication of this view as on the one hand the appellant-wife would be expected to contest the divorce proceeding to her detriment and at the same time would have to undertake the journey from Kakinada to Hyderabad which is bound to affect discharge of her professional duties where she is working as apart from the journey she would also have to seek leave which surely would affect her performance in the company further and put her job at risk. The import of the order clearly is that on the one hand the appellant-wife should live alone, maintain herself by living at her parents place and on the top of it give more attention to contest the divorce proceeding rather than looking to her job on which she is surviving in absence of any support from her husband who not only seeks a decree of divorce but also at convenience by choosing a place of his choice to secure a decree of divorceConsidering the implication of the aforesaid situation and circumstance, the view taken by the High Court refusing to transfer the case is fit to be struck down as illegal, devoid of practical fallout and wisdom. | 1 | 496 | 316 | ### Instruction:
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1. Leave granted. 2. This appeal has been filed challenging the order passed by the High Court of Judicature of Andhra Pradesh at Hyderabad dated 23.07.2012 by which the learned Single Judge was pleased to reject the petition filed by the appellant for transfer of a divorce proceeding instituted by the respondent-husband bearing O.P. No. 1256/2011 which is pending trial in the Family Court, Hyderabad to the Family Court at Kakinada. 3. The High Court appears to have rejected the petition essentially on the ground that the appellant-wife is not a student depending upon her parents and is stated to be employed in a private sector as Company Secretary and, therefore, the High Court held that it was not a case of a destitute woman depending on the charity of her parents and taking shelter in her parental house so as to allow the transfer of the divorce proceeding on the ground that she could not afford the expenditure of travel and accommodation at Hyderabad. 4. We find the approach of the High Court and the reasons assigned clearly unsustainable as the High Court appears to have lost sight of the fact that the respondent-husband on the one hand has filed a divorce proceeding against the appellant-wife and further expects the same to be tried at a place of his choice, which is Hyderabad. The High Court refused to transfer it to the place where the wife is working on the ground that the petitioner- wife is not an indigent lady and she is capable of contesting the suit by undertaking journey from Kakinada to Hyderabad. The learned Single Judge has completely overlooked the implication of this view as on the one hand the appellant-wife would be expected to contest the divorce proceeding to her detriment and at the same time would have to undertake the journey from Kakinada to Hyderabad which is bound to affect discharge of her professional duties where she is working as apart from the journey she would also have to seek leave which surely would affect her performance in the company further and put her job at risk. The import of the order clearly is that on the one hand the appellant-wife should live alone, maintain herself by living at her parents place and on the top of it give more attention to contest the divorce proceeding rather than looking to her job on which she is surviving in absence of any support from her husband who not only seeks a decree of divorce but also at convenience by choosing a place of his choice to secure a decree of divorce. 5. Considering the implication of the aforesaid situation and circumstance, the view taken by the High Court refusing to transfer the case is fit to be struck down as illegal, devoid of practical fallout and wisdom. 6.
### Response:
1
### Explanation:
We find the approach of the High Court and the reasons assigned clearly unsustainable as the High Court appears to have lost sight of the fact that the respondent-husband on the one hand has filed a divorce proceeding against the appellant-wife and further expects the same to be tried at a place of his choice, which is Hyderabad. The High Court refused to transfer it to the place where the wife is working on the ground that the petitioner- wife is not an indigent lady and she is capable of contesting the suit by undertaking journey from Kakinada to Hyderabad. The learned Single Judge has completely overlooked the implication of this view as on the one hand the appellant-wife would be expected to contest the divorce proceeding to her detriment and at the same time would have to undertake the journey from Kakinada to Hyderabad which is bound to affect discharge of her professional duties where she is working as apart from the journey she would also have to seek leave which surely would affect her performance in the company further and put her job at risk. The import of the order clearly is that on the one hand the appellant-wife should live alone, maintain herself by living at her parents place and on the top of it give more attention to contest the divorce proceeding rather than looking to her job on which she is surviving in absence of any support from her husband who not only seeks a decree of divorce but also at convenience by choosing a place of his choice to secure a decree of divorceConsidering the implication of the aforesaid situation and circumstance, the view taken by the High Court refusing to transfer the case is fit to be struck down as illegal, devoid of practical fallout and wisdom.
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Hill Tiller and Company and Others Vs. Coffee Board, Bangalore, Through Its Chief Marketing Officer and Another | may be able to go ahead with the scheme". Paragraph 3 of the affidavit proceeds to state that the aforesaid noting had been approved by the Chairman of the Coffee Board and was implemented during the subsequent years and that there had been absolutely no modification in the method of arriving at the price while the actual price varied from year to year on account of the changes in the components that went into the allotment price. From this affidavit it is quite clear that while making allotments of imported chicory to Actual Users the rate or value of imported chicory was invariably taken to be the price inclusive of import duty, handling and administrative charges and other items of expenditure. If that be so in terms of a para 3 of the Circular dated September 19, 1962 the registered exporters of coffee including appellant 1 were liable to have their entitled made to them on the basis of not merely the C.I.F. price of imported chicory but the price which was inclusive of import duty, handling and administrative charges and other expenses incurred by the Board and the allotments made to them on this basis were proper."8. Turning to Rule IX of the Rules Governing Allotment of Imported Chicory to Actual Users framed by the Coffee Board on December 7, 1960 on which reliance was placed by counsel for the appellants it appears to us clear that the said rule on its proper construction cannot avail the appellants. It is true that the said Rules were framed by the Coffee Board on the subject of allotment of imported chicory to Actual Users during the period October 1960 - March 1961 when the imports of chicory were canalised through the Coffee Board. Rule IX which dealt with Sales Tax will have to be read in the context of the preceding Rule VIII that dealt with Payment of price by the allottee of imported chicory and so read it will be clear that the same was framed only for making it clear that the allottee was also liable to pay sales tax and other taxes, in addition to the price payable by him under Rule VIII. Rule IX had nothing to do and never dealt with the topic of how the allotment to the Actual User was to be determined. It is in this context Rule IX will have to be construed. It ran thus :"IX. Sales Tax. - The allotment rate shall be exclusive of all taxes such as sales tax - both Central and State - and any other taxes, cesses, duties leviable on the same according to law. These shall always be borne by the allottee for the appellants urged that the expression the allotment rate in the above rule meant rate (price) for allotment and, therefore, this rule provided for reckoning the price for making allotment as being exclusive of all taxes, cesses and duties (which would include import duty). It is impossible to put such construction on this rule. In the first place the expression used is not rate for allotment (as is the case in paras 3 and 4(3) of the Circular dated September 19, 1962) but the expression is the allotment rate which must mean and did mean the allotment price meaning thereby the price of the allotment or price of the allotted quantity which shall be exclusive of all taxes, cesses and duties leviable thereon under the law. Secondly, the context as indicated above shows that the expression the allotments rate must have meant the rate or price of the allotment. On its proper construction, therefore, the said rule does not support the appellants contention that the value or price of imported chicory was to be reckoned as exclusive of taxes, cesses and duties while determining the quantity of the allotment."9. In our view, therefore, neither under the terms of the Circular dated September 19, 1962 nor under Rule IX of the Rules for Allotment of Imported Chicory to the Actual Users framed on December 7, 1960 were the registered exporters (including the first appellant) entitled to have allotments of imported chicory made to them on the basis of merely the C.I.F. price paid by the Board while importing chicory.10. Moreover, we find considerable force in the contention of counsel for the Coffee Board that the registered exporters (including the first appellant) should not be permitted to put forward their aforesaid grievance at a belated stage, for, the facts emerging on record in that behalf are very revealing. It was after accepting the earlier allotments made on the basis of the price being inclusive of import duty, handling and administrative charges and other expenses incurred by the Board under the scheme that for the first time by its letter dated October 4, 1965 the Association (second appellant) made its complaint that the price was wrongly being reckoned as inclusive of import duty, handling and administrative charges etc. to which the Coffee Board by its reply dated October 19, 1965 asserted that the price had been fixed after careful consideration and the same could not be reduced. Even thereafter by its letter dated January 28, 1966, the Association seems to have acquiesced in and accepted allotments made to the registered exporters on that basis up to the month of October 1965 and merely stated that the Association will feel obliged if allotments for the month of November and onwards were made on the basis of mere C.I.F. price paid by the Board and that too because the market for imported chicory was declining very fast with the result that the coffee exporters were unable to realise profits as calculated by them and, therefore, in order to enable them to reduce their losses the request was made. In other words, relief of sympathetic consideration was solicited by the Association from the Coffee Board with regard to future allotments. In these circumstances the grievance made by the appellants cannot be entertained by a court of law. | 0[ds]9. In our view, therefore, neither under the terms of the Circular dated September 19, 1962 nor under Rule IX of the Rules for Allotment of Imported Chicory to the Actual Users framed on December 7, 1960 were the registered exporters (including the first appellant) entitled to have allotments of imported chicory made to them on the basis of merely the C.I.F. price paid by the Board while importing chicory.10. Moreover, we find considerable force in the contention of counsel for the Coffee Board that the registered exporters (including the first appellant) should not be permitted to put forward their aforesaid grievance at a belated stage, for, the facts emerging on record in that behalf are very revealing. It was after accepting the earlier allotments made on the basis of the price being inclusive of import duty, handling and administrative charges and other expenses incurred by the Board under the scheme that for the first time by its letter dated October 4, 1965 the Association (second appellant) made its complaint that the price was wrongly being reckoned as inclusive of import duty, handling and administrative charges etc. to which the Coffee Board by its reply dated October 19, 1965 asserted that the price had been fixed after careful consideration and the same could not be reduced. Even thereafter by its letter dated January 28, 1966, the Association seems to have acquiesced in and accepted allotments made to the registered exporters on that basis up to the month of October 1965 and merely stated that the Association will feel obliged if allotments for the month of November and onwards were made on the basis of mere C.I.F. price paid by the Board and that too because the market for imported chicory was declining very fast with the result that the coffee exporters were unable to realise profits as calculated by them and, therefore, in order to enable them to reduce their losses the request was made. In other words, relief of sympathetic consideration was solicited by the Association from the Coffee Board with regard to future allotments. In these circumstances the grievance made by the appellants cannot be entertained by a court of law. | 0 | 3,805 | 400 | ### Instruction:
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may be able to go ahead with the scheme". Paragraph 3 of the affidavit proceeds to state that the aforesaid noting had been approved by the Chairman of the Coffee Board and was implemented during the subsequent years and that there had been absolutely no modification in the method of arriving at the price while the actual price varied from year to year on account of the changes in the components that went into the allotment price. From this affidavit it is quite clear that while making allotments of imported chicory to Actual Users the rate or value of imported chicory was invariably taken to be the price inclusive of import duty, handling and administrative charges and other items of expenditure. If that be so in terms of a para 3 of the Circular dated September 19, 1962 the registered exporters of coffee including appellant 1 were liable to have their entitled made to them on the basis of not merely the C.I.F. price of imported chicory but the price which was inclusive of import duty, handling and administrative charges and other expenses incurred by the Board and the allotments made to them on this basis were proper."8. Turning to Rule IX of the Rules Governing Allotment of Imported Chicory to Actual Users framed by the Coffee Board on December 7, 1960 on which reliance was placed by counsel for the appellants it appears to us clear that the said rule on its proper construction cannot avail the appellants. It is true that the said Rules were framed by the Coffee Board on the subject of allotment of imported chicory to Actual Users during the period October 1960 - March 1961 when the imports of chicory were canalised through the Coffee Board. Rule IX which dealt with Sales Tax will have to be read in the context of the preceding Rule VIII that dealt with Payment of price by the allottee of imported chicory and so read it will be clear that the same was framed only for making it clear that the allottee was also liable to pay sales tax and other taxes, in addition to the price payable by him under Rule VIII. Rule IX had nothing to do and never dealt with the topic of how the allotment to the Actual User was to be determined. It is in this context Rule IX will have to be construed. It ran thus :"IX. Sales Tax. - The allotment rate shall be exclusive of all taxes such as sales tax - both Central and State - and any other taxes, cesses, duties leviable on the same according to law. These shall always be borne by the allottee for the appellants urged that the expression the allotment rate in the above rule meant rate (price) for allotment and, therefore, this rule provided for reckoning the price for making allotment as being exclusive of all taxes, cesses and duties (which would include import duty). It is impossible to put such construction on this rule. In the first place the expression used is not rate for allotment (as is the case in paras 3 and 4(3) of the Circular dated September 19, 1962) but the expression is the allotment rate which must mean and did mean the allotment price meaning thereby the price of the allotment or price of the allotted quantity which shall be exclusive of all taxes, cesses and duties leviable thereon under the law. Secondly, the context as indicated above shows that the expression the allotments rate must have meant the rate or price of the allotment. On its proper construction, therefore, the said rule does not support the appellants contention that the value or price of imported chicory was to be reckoned as exclusive of taxes, cesses and duties while determining the quantity of the allotment."9. In our view, therefore, neither under the terms of the Circular dated September 19, 1962 nor under Rule IX of the Rules for Allotment of Imported Chicory to the Actual Users framed on December 7, 1960 were the registered exporters (including the first appellant) entitled to have allotments of imported chicory made to them on the basis of merely the C.I.F. price paid by the Board while importing chicory.10. Moreover, we find considerable force in the contention of counsel for the Coffee Board that the registered exporters (including the first appellant) should not be permitted to put forward their aforesaid grievance at a belated stage, for, the facts emerging on record in that behalf are very revealing. It was after accepting the earlier allotments made on the basis of the price being inclusive of import duty, handling and administrative charges and other expenses incurred by the Board under the scheme that for the first time by its letter dated October 4, 1965 the Association (second appellant) made its complaint that the price was wrongly being reckoned as inclusive of import duty, handling and administrative charges etc. to which the Coffee Board by its reply dated October 19, 1965 asserted that the price had been fixed after careful consideration and the same could not be reduced. Even thereafter by its letter dated January 28, 1966, the Association seems to have acquiesced in and accepted allotments made to the registered exporters on that basis up to the month of October 1965 and merely stated that the Association will feel obliged if allotments for the month of November and onwards were made on the basis of mere C.I.F. price paid by the Board and that too because the market for imported chicory was declining very fast with the result that the coffee exporters were unable to realise profits as calculated by them and, therefore, in order to enable them to reduce their losses the request was made. In other words, relief of sympathetic consideration was solicited by the Association from the Coffee Board with regard to future allotments. In these circumstances the grievance made by the appellants cannot be entertained by a court of law.
### Response:
0
### Explanation:
9. In our view, therefore, neither under the terms of the Circular dated September 19, 1962 nor under Rule IX of the Rules for Allotment of Imported Chicory to the Actual Users framed on December 7, 1960 were the registered exporters (including the first appellant) entitled to have allotments of imported chicory made to them on the basis of merely the C.I.F. price paid by the Board while importing chicory.10. Moreover, we find considerable force in the contention of counsel for the Coffee Board that the registered exporters (including the first appellant) should not be permitted to put forward their aforesaid grievance at a belated stage, for, the facts emerging on record in that behalf are very revealing. It was after accepting the earlier allotments made on the basis of the price being inclusive of import duty, handling and administrative charges and other expenses incurred by the Board under the scheme that for the first time by its letter dated October 4, 1965 the Association (second appellant) made its complaint that the price was wrongly being reckoned as inclusive of import duty, handling and administrative charges etc. to which the Coffee Board by its reply dated October 19, 1965 asserted that the price had been fixed after careful consideration and the same could not be reduced. Even thereafter by its letter dated January 28, 1966, the Association seems to have acquiesced in and accepted allotments made to the registered exporters on that basis up to the month of October 1965 and merely stated that the Association will feel obliged if allotments for the month of November and onwards were made on the basis of mere C.I.F. price paid by the Board and that too because the market for imported chicory was declining very fast with the result that the coffee exporters were unable to realise profits as calculated by them and, therefore, in order to enable them to reduce their losses the request was made. In other words, relief of sympathetic consideration was solicited by the Association from the Coffee Board with regard to future allotments. In these circumstances the grievance made by the appellants cannot be entertained by a court of law.
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Commnr. Of Income Tax, Ahmedabad Vs. Sunil J. Kinariwala | entered into between the landlord the company, the Trust and the college, it was stipulated, inter alia, that in the event of failure to pay the amount to the college, it would have full right to recover the said amount by recourse to the court and that the college shall have the first charge on the property. The landlord claimed that the amount paid to the college was the income of the college as it get diverted by over-riding title and ceased to be the income of the landlord. That contention was rejected by the Tribunal as well as the High Court. On appeal to this Court, applying the principle in Sitaldas Tirathdas (supra), it was held by a Bench of three learned Judges that the stipulation in the agreement to pay Rupees ten thousand out of the annual rent directly to the college was only a mode of application of the income of the landlord, which made no difference to its liability to pay tax on the entire rent of Rupees twenty on thousand which had accrued to the landlord. The fact that the college was given the right to sue and recover Rupees ten thousand directly from the company in case of default, it was observed, did not alter the position, nor would creation of charge in favour of the college make any difference. 14. Now, we shall advert to the cases relied upon by the High Court. 15. Bhagyalakshmi (supra), two members of the Hindu Undivided Family together held ten annas share in a firm. On partition in the family, the share of the said members was divided among various members of the family. Thereafter, a fresh partnership deed was executed in which the said two persons were, however, shown as having the same proportion of share in the firm. They claimed that they were liable to pay tax only on the respective shares shown in the partnership deed. That contention was upheld by the Tribunal. Thereafter, the Commissioner cancelled the registration of the partnership firm under the Act on the ground that it did not specify the correct shares of the said two persons in the partnership. It was held by this court that the firm was entitled to be registered and that the shares given to the said two persons in the partnership deed were correct according to the terms of the deed, although they would be answerable to the divided members of the family in respect of profits pertaining to their shares. This case does not deal with the principle of diversion of income by over-riding title in his case.16. In Murlidhar Himatsingka (supra), one of the partners of the firm constituted a sub-partnership firm with his two sons and a grandson. The deed of sub-partnership provided that the profits and losses of the partner in the main firm shall belong to the sub-partnership and shall be borne and divided in accordance with the shares specified therein. The question in that case was: whether the share of the partner in the main firm, who had become a partner in the sub-partnership, could be assessed in his individual assessment. it was held that there was over-riding obligation which converted the income of the partner in the main firm into the income of the sub-partnership and, therefore, the income attributable to the share of the partner had to be included in the assessment of the sub-partnership. That was on the principle that a partner in the sub-partnership had a definite enforceable right to claim a share in the profits accrued to or received by the other partner in the main partnership, as on entering into a sub-partnership, such a partner changes his character vis-a-vis the sub-partners and the Income Tax authorities. Further, a sub-partnership creates a superior title and results in diversion of the income from the main firm to the sub-partnership before the same becomes the income of the concerned partner. In such a case, even if the partner receives the income from the main partnership, he does so not on his behalf but on behalf of the sub-partnership. Distinguishing K.A. Ramchar (supra), it was observed, "In that case it was neither urged for found that sub-partnership came into existence between the assessee who was partner in a firm and his wife, married daughter and minor daughter. It was a pure case of assignment of profits (and not losses) by the partner during the period of eight years. Further the fact that a sub-partner can have no direct claim to the profits vis-a-vis the other partners of the firm and that it is the partner alone who is entitled to profits vis-a-vis the other partners does not show that the changed character of the partner should not be taken into consideration for income-tax purposes". 17. It is apt to notice that there is a clear distinction between a case where a partner of a firm assigns his share in favour of a third person and a case where a partner constitutes a sub-partnership with his share in the main partnership. Whereas in the former case, in view of section 29(1) of the Indian Partnership Act, the assignee gets no right or interest in the main partnership, except, of course, to receive that part of the profits of the firm referrable to the assignment and to the assets in the event of dissolution of the firm, but in the latter case, the sub-partnership acquires a special interest in the main partnership. The case on hand cannot be treated as one of a sub-partnership, though in view of Section 29(1) of the Indian Partnership Act, the Trust, as an assignee, becomes entitled to receive the assigned share in the profits from the firm not as a sub-partner because no sub-partnership came into existence but as an assignee of the share of income of the assigner-partner. 18. In this view of the matter, it is unnecessary to consider the alternative contention based on Section 60 of the Act. | 1[ds]8. It may be pointed out that under the scheme of the Act, it is the total income of an assessee, computed under the provisions of the Act, that is assessable to income tax. So much of the income which an assessee is not entitled to receive by virtue of antitled created in favour of a third party would get diverted at source and the same cannot be added in computing the total income in the assesse. The principle is simple enough but more often than not, as in the instant case, the question arises as to whatis the criteria to determine, when does the income attributable to an assessee get diverted bytitle? The determinative factor, in our view, is the nature and effect of the assessees obligation in regard to the amount in question. When a third person becomes entitled to receive the amount under an obligation of an assessee even before he could lay claim to receive it as his income, there would be diversion of income bytitle; but when after receipt of the income by the assessee, the same is passed on to a third person in discharge of the obligation of the assessee, it will be a case of application of income by the assessee and not of diversion of income bytitle. The decisions of the Privy Council in Bejoy Singh Dudhuria vs. Commissioner of[(1933) 1 I.T.R. ] 135 and P.C. Mullick vs. Commissioner of[(1938) 6 I.T.R. 206] together are illustrative of the principle of diversion of income by. Bhagyalakshmi (supra), two members of the Hindu Undivided Family together held ten annas share in a firm. On partition in the family, the share of the said members was divided among various members of the family. Thereafter, a fresh partnership deed was executed in which the said two persons were, however, shown as having the same proportion of share in the firm. They claimed that they were liable to pay tax only on the respective shares shown in the partnership deed. That contention was upheld by the Tribunal. Thereafter, the Commissioner cancelled the registration of the partnership firm under the Act on the ground that it did not specify the correct shares of the said two persons in the partnership. It was held by this court that the firm was entitled to be registered and that the shares given to the said two persons in the partnership deed were correct according to the terms of the deed, although they would be answerable to the divided members of the family in respect of profits pertaining to their shares. This case does not deal with the principle of diversion of income bytitle in his case.16. In Murlidhar Himatsingka (supra), one of the partners of the firm constituted afirm with his two sons and a grandson. The deed ofprovided that the profits and losses of the partner in the main firm shall belong to theand shall be borne and divided in accordance with the shares specified therein. The question in that case was: whether the share of the partner in the main firm, who had become a partner in thecould be assessed in his individual assessment. it was held that there wasobligation which converted the income of the partner in the main firm into the income of theand, therefore, the income attributable to the share of the partner had to be included in the assessment of theThat was on the principle that a partner in thehad a definite enforceable right to claim a share in the profits accrued to or received by the other partner in the main partnership, as on entering into asuch a partner changes his characterrs and the Income Tax authorities. Further, acreates a superior title and results in diversion of the income from the main firm to theIt is apt to notice that there is a clear distinction between a case where a partner of a firm assigns his share in favour of a third person and a case where a partner constitutes awith his share in the main partnership. Whereas in the former case, in view of section 29(1) of the Indian Partnership Act, the assignee gets no right or interest in the main partnership, except, of course, to receive that part of the profits of the firm referrable to the assignment and to the assets in the event of dissolution of the firm, but in the latter case, theacquires a special interest in the main partnership. The case on hand cannot be treated as one of athough in view of Section 29(1) of the Indian Partnership Act, the Trust, as an assignee, becomes entitled to receive the assigned share in the profits from the firm not as aIn this view of the matter, it is unnecessary to consider the alternative contention based on Section 60 of the Act. | 1 | 3,951 | 891 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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entered into between the landlord the company, the Trust and the college, it was stipulated, inter alia, that in the event of failure to pay the amount to the college, it would have full right to recover the said amount by recourse to the court and that the college shall have the first charge on the property. The landlord claimed that the amount paid to the college was the income of the college as it get diverted by over-riding title and ceased to be the income of the landlord. That contention was rejected by the Tribunal as well as the High Court. On appeal to this Court, applying the principle in Sitaldas Tirathdas (supra), it was held by a Bench of three learned Judges that the stipulation in the agreement to pay Rupees ten thousand out of the annual rent directly to the college was only a mode of application of the income of the landlord, which made no difference to its liability to pay tax on the entire rent of Rupees twenty on thousand which had accrued to the landlord. The fact that the college was given the right to sue and recover Rupees ten thousand directly from the company in case of default, it was observed, did not alter the position, nor would creation of charge in favour of the college make any difference. 14. Now, we shall advert to the cases relied upon by the High Court. 15. Bhagyalakshmi (supra), two members of the Hindu Undivided Family together held ten annas share in a firm. On partition in the family, the share of the said members was divided among various members of the family. Thereafter, a fresh partnership deed was executed in which the said two persons were, however, shown as having the same proportion of share in the firm. They claimed that they were liable to pay tax only on the respective shares shown in the partnership deed. That contention was upheld by the Tribunal. Thereafter, the Commissioner cancelled the registration of the partnership firm under the Act on the ground that it did not specify the correct shares of the said two persons in the partnership. It was held by this court that the firm was entitled to be registered and that the shares given to the said two persons in the partnership deed were correct according to the terms of the deed, although they would be answerable to the divided members of the family in respect of profits pertaining to their shares. This case does not deal with the principle of diversion of income by over-riding title in his case.16. In Murlidhar Himatsingka (supra), one of the partners of the firm constituted a sub-partnership firm with his two sons and a grandson. The deed of sub-partnership provided that the profits and losses of the partner in the main firm shall belong to the sub-partnership and shall be borne and divided in accordance with the shares specified therein. The question in that case was: whether the share of the partner in the main firm, who had become a partner in the sub-partnership, could be assessed in his individual assessment. it was held that there was over-riding obligation which converted the income of the partner in the main firm into the income of the sub-partnership and, therefore, the income attributable to the share of the partner had to be included in the assessment of the sub-partnership. That was on the principle that a partner in the sub-partnership had a definite enforceable right to claim a share in the profits accrued to or received by the other partner in the main partnership, as on entering into a sub-partnership, such a partner changes his character vis-a-vis the sub-partners and the Income Tax authorities. Further, a sub-partnership creates a superior title and results in diversion of the income from the main firm to the sub-partnership before the same becomes the income of the concerned partner. In such a case, even if the partner receives the income from the main partnership, he does so not on his behalf but on behalf of the sub-partnership. Distinguishing K.A. Ramchar (supra), it was observed, "In that case it was neither urged for found that sub-partnership came into existence between the assessee who was partner in a firm and his wife, married daughter and minor daughter. It was a pure case of assignment of profits (and not losses) by the partner during the period of eight years. Further the fact that a sub-partner can have no direct claim to the profits vis-a-vis the other partners of the firm and that it is the partner alone who is entitled to profits vis-a-vis the other partners does not show that the changed character of the partner should not be taken into consideration for income-tax purposes". 17. It is apt to notice that there is a clear distinction between a case where a partner of a firm assigns his share in favour of a third person and a case where a partner constitutes a sub-partnership with his share in the main partnership. Whereas in the former case, in view of section 29(1) of the Indian Partnership Act, the assignee gets no right or interest in the main partnership, except, of course, to receive that part of the profits of the firm referrable to the assignment and to the assets in the event of dissolution of the firm, but in the latter case, the sub-partnership acquires a special interest in the main partnership. The case on hand cannot be treated as one of a sub-partnership, though in view of Section 29(1) of the Indian Partnership Act, the Trust, as an assignee, becomes entitled to receive the assigned share in the profits from the firm not as a sub-partner because no sub-partnership came into existence but as an assignee of the share of income of the assigner-partner. 18. In this view of the matter, it is unnecessary to consider the alternative contention based on Section 60 of the Act.
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8. It may be pointed out that under the scheme of the Act, it is the total income of an assessee, computed under the provisions of the Act, that is assessable to income tax. So much of the income which an assessee is not entitled to receive by virtue of antitled created in favour of a third party would get diverted at source and the same cannot be added in computing the total income in the assesse. The principle is simple enough but more often than not, as in the instant case, the question arises as to whatis the criteria to determine, when does the income attributable to an assessee get diverted bytitle? The determinative factor, in our view, is the nature and effect of the assessees obligation in regard to the amount in question. When a third person becomes entitled to receive the amount under an obligation of an assessee even before he could lay claim to receive it as his income, there would be diversion of income bytitle; but when after receipt of the income by the assessee, the same is passed on to a third person in discharge of the obligation of the assessee, it will be a case of application of income by the assessee and not of diversion of income bytitle. The decisions of the Privy Council in Bejoy Singh Dudhuria vs. Commissioner of[(1933) 1 I.T.R. ] 135 and P.C. Mullick vs. Commissioner of[(1938) 6 I.T.R. 206] together are illustrative of the principle of diversion of income by. Bhagyalakshmi (supra), two members of the Hindu Undivided Family together held ten annas share in a firm. On partition in the family, the share of the said members was divided among various members of the family. Thereafter, a fresh partnership deed was executed in which the said two persons were, however, shown as having the same proportion of share in the firm. They claimed that they were liable to pay tax only on the respective shares shown in the partnership deed. That contention was upheld by the Tribunal. Thereafter, the Commissioner cancelled the registration of the partnership firm under the Act on the ground that it did not specify the correct shares of the said two persons in the partnership. It was held by this court that the firm was entitled to be registered and that the shares given to the said two persons in the partnership deed were correct according to the terms of the deed, although they would be answerable to the divided members of the family in respect of profits pertaining to their shares. This case does not deal with the principle of diversion of income bytitle in his case.16. In Murlidhar Himatsingka (supra), one of the partners of the firm constituted afirm with his two sons and a grandson. The deed ofprovided that the profits and losses of the partner in the main firm shall belong to theand shall be borne and divided in accordance with the shares specified therein. The question in that case was: whether the share of the partner in the main firm, who had become a partner in thecould be assessed in his individual assessment. it was held that there wasobligation which converted the income of the partner in the main firm into the income of theand, therefore, the income attributable to the share of the partner had to be included in the assessment of theThat was on the principle that a partner in thehad a definite enforceable right to claim a share in the profits accrued to or received by the other partner in the main partnership, as on entering into asuch a partner changes his characterrs and the Income Tax authorities. Further, acreates a superior title and results in diversion of the income from the main firm to theIt is apt to notice that there is a clear distinction between a case where a partner of a firm assigns his share in favour of a third person and a case where a partner constitutes awith his share in the main partnership. Whereas in the former case, in view of section 29(1) of the Indian Partnership Act, the assignee gets no right or interest in the main partnership, except, of course, to receive that part of the profits of the firm referrable to the assignment and to the assets in the event of dissolution of the firm, but in the latter case, theacquires a special interest in the main partnership. The case on hand cannot be treated as one of athough in view of Section 29(1) of the Indian Partnership Act, the Trust, as an assignee, becomes entitled to receive the assigned share in the profits from the firm not as aIn this view of the matter, it is unnecessary to consider the alternative contention based on Section 60 of the Act.
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Kolkata Metropolitan Development Authority Vs. Pradip Kumar Ghosh and Ors | would be a case of violation of the order to be dealt with under the Contempt of Courts Act. However, in our opinion, when statutory provision had been invoked for acquisition, there is no question of applicability of contempt of court also as laid down in Jacob (supra). 25. Reliance has been placed on Patasi Devi v. State of Haryana (2012) 9 SCC 503 that it was a colourable exercise of power. In the said case this Court found that the acquisition was made in order to oblige the colonizer that was not for a public purpose. The facts are different in the instant case. The property had been acquired for the purpose of systematic development of Calcutta and the same has been handed over to Kolkata Metropolitan Development Corporation for the said purpose. Thus it could not be said that there was colourable exercise of power in the instant case. 26. It was also submitted on behalf of Respondents that even if the order is void, it is required to be so declared by the competent forum. It is not permissible to ignore it. For the purpose, reliance has been placed on Krishnadevi Malchand Kamathia and Ors. v. Bombay Environmental Action Group and Ors. (2011) 3 SCC 363 : 16. It is a settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvi AIR 1996 SC 906 , Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd. AIR 1997 SC 1240 , M. Meenakshi v. Metadin Agarwal (2006) 7 SCC 470 and Sneh Gupta v. Devi Sarup (2009) 6 SCC 194 , this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum. 17. In State of Punjab v. Gurdev Singh AIR 1991 SC 2219 , this Court held that a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in Smith v. East Elloe RDC 1956 AC 736, wherein Lord Radcliffe observed: (AC pp. 769-70) ... An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity [on] its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. 18. In Sultan Sadik v. Sanjay Raj Subba AIR 2004 SC 1377 , this Court took a similar view observing that once an order is declared non-est by the court only then the judgment of nullity would operate ergaomnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity. 19. Thus, from the above, it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the Petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person. In the instant case ratio of the aforesaid dictum is not applicable and it is not the case that the order was void but statutory power has been exercised and considering the nature of command that has been issued in the previous order dated 10.9.1993, the decision in Krishnadevi (supra) is not attracted to the case. 27. It was also submitted on behalf of the Respondents that an erroneous decision operates as res judicata. For this purpose, reliance has been placed on Mohanlal Goenka v. Benoy Krishna Mukherjee and Ors. AIR 1953 SC 65 . This Court observed: (23)There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. A decision in the previous execution case between the parties that the matter was not within the competence of the executing Court even though erroneous is binding on the parties; see Abhoy Kanta Gohain v. Gopinath Deb Goswami and Ors. AIR (30) 1943 Cal 460. There is no question of applicability of res judicata in the instant case. As statutory power has been exercised the statutory action is not stifled by the order of the court. It was stated that the land was proposed to be sold but the Appellants had made it clear that they are not going to sell the property. This Court had held in Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. and Ors. (1996) 11 SCC 501 where the land has been acquired for public purpose may be used for another public purpose; diversion to private purpose is only interdicted. 28. In view of the aforesaid discussion, we find that the Division Bench of the High Court has erred in law in quashing the acquisition. | 1[ds]It is apparent from the aforesaid provisions that the property that is under requisition can only be acquired. Requisition is a sine qua non for a property as on the date when notification Under Section 4 is issued. Section 3 had been omitted w.e.f. 1.4.1994. However the property was requisitioned before the provision was omitted.11. Sections 3 and 4 of the Act are relevantIt is apparent that Section 6 requires an order to be passed by the State Government for release of the property from requisition. Government has to conduct an inquiry if any, considered necessary then the release order has to be passed and possession of the property has to be delivered Under Section 6. Section 6(2) also provides that even if possession has been delivered pursuant to a release order, the same shall not prejudice any right in respect of such land, if any other person may be entitled by due process of law to enforce against the person to whom possession of land was delivered.13. The High Court in the instant case has not directed delivery of possession and possession had not been handed over. Thus by virtue of the provisions contained in Section 6, until and unless release order is passed and delivery of possession pursuant thereto takes place, the requisition would continue.There is no dispute with the proposition laid down in Comptroller and Auditor-General of India (supra) and Andi Mukta Sadguru (supra) that mandamus can be issued for doing the positive act or a legal duty cast upon an authority.The Supreme Court laid down in Director of Settlements, A.P. and Ors. v. M.R. Apparao and Anr. (2002) 4 SCC 638 , that no further mandamus could have been issued for release of payment in implementation of its earlier order. Once the decision on which it was based that is Venkatagiri case stood wiped off thus the mandamus became unenforceable. The Court further held that if the law which was declared invalid by the High Court is held constitutionally valid, effective and binding by the Supreme Court, then the mandamus forbearing the authorities from enforcing its provisions would become ineffective and the authorities cannot be compelled to perform a negative duty. The mandamus would not survive in favour of those parties against whom appeals were not filed. This Court examined the question whether while issuing a mandamus, the earlier judgment notwithstanding having been held to be rendered ineffective, can still be held to be operative. This Court in Director of Settlements v. M.R. Apparao (supra) observed:In other words, the judgment of the Andhra Pradesh High Court in Venkatagiri case holding the Amendment Act to be constitutionally invalid, on being reversed by the Supreme Court on a conclusion that the said amendment is constitutionally valid, the said dictum would be valid throughout the country and for all persons, including the Respondents, even though the judgment in their favour had not been assailed. It would in fact lead to an anomalous situation, if in the case of the Respondents, the earlier conclusion that the Amendment Act is constitutionally invalid is allowed to operate notwithstanding the reversal of that conclusion in Venkatagiri case and only in Venkatagiri case or where the parties have never approached the Court to hold that the same is constitutionally valid. This being the position, notwithstanding the enunciation of the principle of res judicata and its applicability to the litigation between the parties at different stages, it is difficult for us to sustain the argument of Mr. Rao that an indefeasible right has accrued to the Respondents on the basis of the judgment in their favour which had not been challenged and that right could be enforced by issuance of a fresh mandamus. On the other hand, to have uniformity of the law and to have universal application of the law laid down by this Court in Venkatagiri case it would be reasonable to hold that the so-called direction in favour of the Respondents became futile inasmuch as the direction was on the basis that the Amendment Act is constitutionally invalid, the moment the Supreme Court holds the Act to be constitutionally valid. We are, therefore, of the considered opinion that no indefeasible right on the Respondents could be said to have accrued on account of the earlier judgment in their favour notwithstanding the reversal of the judgment of the High Court in Venkatagiri case.19. This Court has laid down that the High Court erred in issuing mandamus in respect of a right which ceased to exist and was not available on the date on which mandamus had been issued afresh. In our opinion to enforce an order it should be effective on date mandamus is sought to be enforced. It can be interdicted by another order or by statutory intervention.29. In view of the above, it is evident that any order passed by any authority in spite of the knowledge of the interim order of the court is of no consequence as it remains a nullity.Firstly the court had not quashed the order of requisition. Apart from that, the court has not ordered that on lapse of 6 months period granted for acquisition and further period of 6 months property shall stand derequisitioned. The direction was issued to the L.A.C. to release the property in question from requisition. It was not an automatic consequence of the command issued. Thus if the property had not been released Under Section 6 of the Act obviously the requisition continued and statutory power of acquisition could have been exercised.24. In the instant case as the High Court has not quashed the notification Under Section 3 and till derequisition was actually made, once statutory power had been exercised Under Section 4 which could be exercised when requisition continues and that as a matter of fact, continued as the court had not culled out the consequence, there was no automatic consequence of the derequisition on lapse of specified time. Proceedings Under Section 6 were required to be undertaken. No order of release was passed. Requisition continued until the date of acquisition notification and there was no time limit for initiating acquisition under the Act. The statutory provision would not be stultified by the command so issued by the High Court in view of the decision of this Court in Jacob (supra). Though, Single Judge has opined that considering the order, it would be a case of violation of the order to be dealt with under the Contempt of Courts Act. However, in our opinion, when statutory provision had been invoked for acquisition, there is no question of applicability of contempt of court also as laid down in Jacob (supra).23. In General Manager, Department of Telecommunications, Thiruvananthapuram v. Jacob s/o Kochuvarkey Kalliath (dead) by L.Rs. and Ors. (2003) 9 SCC 662 this Court considered the question of issuance of direction by the High Court to complete acquisition proceedings and pass an award within a specified period with a view to avoiding further delay. This Court held that it would not disable the authorities to exercise power Under Section 11-A where under a longer period was available for passing an award. This Court also held that direction or order couldnt be read to stultify any authority from exercising its powers under the statute or deprives a statutory provision of its enforceability. This Court also considered the question of limitations of mandamus and also issue of liability under the Contempt of Courts Act, and held that there was no violation of either in exercise of statutory powers despite court order. This Court observed:7. As for the plea raised on behalf of the Respondents that since the Court directed the passing of the award by 3-9-1992 which time was subsequently extended up to 3-12-1992, irrespective of the provisions contained in the Act or for that matter even if what was said by the Court was right or wrong, the order passed by the Court was very much binding inter partes and the Appellant could not have legitimately passed an award at any time beyond 3-12-1992. Strong reliance has been placed upon the decision reported in N. Narasimhaiah (1996) 3 SCC 88. This was a case wherein the exercise of power Under Section 17(4) dispensing with enquiry Under Section 5-A was quashed by the High Court and liberty was given to the State to proceed further in accordance with law i.e. to conduct the enquiry Under Section 5-A and if the Government forms an opinion that the land is required for a public purpose, issue a fresh declaration Under Section 6. The question, which loomed large for consideration, was as to whether the limitation prescribed under Clause (ii) of the first proviso to Sub-section (1) would still remain operative and be capable of being complied with. This Court observed that running of the limitation should be counted from the date of the order of the court received by the Land Acquisition Officer and declaration is to be published within one year from that date. This was for the reason that the Court having quashed the earlier declaration Under Section 6 when directed an enquiry Under Section 5-A to be conducted and to proceed afresh from that stage, the limitation prescribed for issuing Section 6 declaration would apply to the publication of declaration Under Section 6(1) afresh and to be complied with from the date of receipt of a copy of the order of the Court. This decision is of no assistance whatsoever to the Respondents in the present case. Notwithstanding the statutory period fixed, further time came to be granted due to intervention of court proceedings in which a direction came to be issued to proceed in the matter afresh, as directed by the Court, apparently applying the well-settled legal maximactus curiae neminemgravabit: an act of the court shall prejudice no man. In substance what was done therein was to necessitate afresh calculation of the statutory period from the date of receipt of the copy of the order of the court. Granting of further time than the one stipulated in law in a given case as a sequel to the decision to carry out the dictates of the court afresh is not the same as curtailing the statutory period of time to stultify an action otherwise permissible or allowed in law. Consequently, no inspiration can be drawn by the Respondents in this case on the analogy of the said decision.8. Reliance placed on the decision reported in M.M. Krishnamurthy Chetty (1998) 9 SCC 138 is equally inappropriate and ill-conceived. That was a case wherein a learned Judge of the High Court, while setting aside the order passed by the statutory authorities under the Tamil Nadu Land Reforms (Fixation of Ceiling of Land) Act, 1961, remanded the case for fresh consideration specifically in the light of an earlier judgment of the High Court in the case of Naganatha Ayyar v. Authorised Officer 84 MLW 69. While the remand proceedings were pending before the authorised officer, this Court reversed the aforesaid judgment in Authorised Officer v. S. Naganatha Ayyar (1979) 3 SCC 466 and the authorised officer decided the ceiling limit in the remit proceedings in terms of the decision of this Court and not as per the directions of the High Court to determine the same in the light of the earlier High Court judgment. It was held in that case that the order of the High Court directing the authorised officer to examine the dispute in the light of the earlier High Court decision reported in Naganatha (supra) having become final in the absence of any challenge thereto despite the reversal of the earlier High Court judgment by this Court, this Court observed that even orders which may not be strictly legal become final and are binding on the parties if they are not challenged before the superior courts. This Court, while rendering the said decision, was concerned with a direction of the High Court to do a particular thing in a particular manner and unless the binding judgment between parties was set at naught to enable the authority to do it in any other way, it had to be done in a particular manner so directed by the Court or not at all. So far as the case on hand is concerned, since the Court in the earlier proceedings had intervened at the instance of the Respondents the Court was directing the authorities concerned to complete the process within a particular time to avoid further delay and ensure expeditious conclusion of the proceedings. There is nothing to indicate in the order of the High Court stipulating or extending the time for passing the award, that beyond the time so permitted, it cannot be done at all and the authorities are disabled once and for all even to proceed in the matter in accordance with law, if it is so permissible for the authorities under the law governing the matter in issue. The Court cannot be imputed with such an intention to stifle the authorities from exercising powers vested with them under statute or to have rendered an otherwise enforceable statutory provision, a mere dead letter. Neither from the nature and purport of the earlier orders passed nor from their contents, is there any scope for inferring the imposition of a total embargo upon the competent authorities, to exercise the statutory powers indisputably vested with and available to such authorities under the statute, at the time of such exercise.25. Reliance has been placed on Patasi Devi v. State of Haryana (2012) 9 SCC 503 that it was a colourable exercise of power. In the said case this Court found that the acquisition was made in order to oblige the colonizer that was not for a public purpose. The facts are different in the instant case. The property had been acquired for the purpose of systematic development of Calcutta and the same has been handed over to Kolkata Metropolitan Development Corporation for the said purpose. Thus it could not be said that there was colourable exercise of power in the instant case.26. It was also submitted on behalf of Respondents that even if the order is void, it is required to be so declared by the competent forum.It is not permissible to ignore it.In the instant case ratio of the aforesaid dictum is not applicable and it is not the case that the order was void but statutory power has been exercised and considering the nature of command that has been issued in the previous order dated 10.9.1993, the decision in Krishnadevi (supra) is not attracted to the case.There is no question of applicability of res judicata in the instant case. As statutory power has been exercised the statutory action is not stifled by the order of the court. It was stated that the land was proposed to be sold but the Appellants had made it clear that they are not going to sell the property. This Court had held in Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. and Ors. (1996) 11 SCC 501 where the land has been acquired for public purpose may be used for another public purpose; diversion to private purpose is only interdicted.28. In view of the aforesaid discussion, we find that the Division Bench of the High Court has erred in law in quashing the acquisition. | 1 | 11,608 | 2,763 | ### 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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would be a case of violation of the order to be dealt with under the Contempt of Courts Act. However, in our opinion, when statutory provision had been invoked for acquisition, there is no question of applicability of contempt of court also as laid down in Jacob (supra). 25. Reliance has been placed on Patasi Devi v. State of Haryana (2012) 9 SCC 503 that it was a colourable exercise of power. In the said case this Court found that the acquisition was made in order to oblige the colonizer that was not for a public purpose. The facts are different in the instant case. The property had been acquired for the purpose of systematic development of Calcutta and the same has been handed over to Kolkata Metropolitan Development Corporation for the said purpose. Thus it could not be said that there was colourable exercise of power in the instant case. 26. It was also submitted on behalf of Respondents that even if the order is void, it is required to be so declared by the competent forum. It is not permissible to ignore it. For the purpose, reliance has been placed on Krishnadevi Malchand Kamathia and Ors. v. Bombay Environmental Action Group and Ors. (2011) 3 SCC 363 : 16. It is a settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvi AIR 1996 SC 906 , Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd. AIR 1997 SC 1240 , M. Meenakshi v. Metadin Agarwal (2006) 7 SCC 470 and Sneh Gupta v. Devi Sarup (2009) 6 SCC 194 , this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum. 17. In State of Punjab v. Gurdev Singh AIR 1991 SC 2219 , this Court held that a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in Smith v. East Elloe RDC 1956 AC 736, wherein Lord Radcliffe observed: (AC pp. 769-70) ... An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity [on] its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. 18. In Sultan Sadik v. Sanjay Raj Subba AIR 2004 SC 1377 , this Court took a similar view observing that once an order is declared non-est by the court only then the judgment of nullity would operate ergaomnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity. 19. Thus, from the above, it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the Petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person. In the instant case ratio of the aforesaid dictum is not applicable and it is not the case that the order was void but statutory power has been exercised and considering the nature of command that has been issued in the previous order dated 10.9.1993, the decision in Krishnadevi (supra) is not attracted to the case. 27. It was also submitted on behalf of the Respondents that an erroneous decision operates as res judicata. For this purpose, reliance has been placed on Mohanlal Goenka v. Benoy Krishna Mukherjee and Ors. AIR 1953 SC 65 . This Court observed: (23)There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. A decision in the previous execution case between the parties that the matter was not within the competence of the executing Court even though erroneous is binding on the parties; see Abhoy Kanta Gohain v. Gopinath Deb Goswami and Ors. AIR (30) 1943 Cal 460. There is no question of applicability of res judicata in the instant case. As statutory power has been exercised the statutory action is not stifled by the order of the court. It was stated that the land was proposed to be sold but the Appellants had made it clear that they are not going to sell the property. This Court had held in Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. and Ors. (1996) 11 SCC 501 where the land has been acquired for public purpose may be used for another public purpose; diversion to private purpose is only interdicted. 28. In view of the aforesaid discussion, we find that the Division Bench of the High Court has erred in law in quashing the acquisition.
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1
### Explanation:
whatsoever to the Respondents in the present case. Notwithstanding the statutory period fixed, further time came to be granted due to intervention of court proceedings in which a direction came to be issued to proceed in the matter afresh, as directed by the Court, apparently applying the well-settled legal maximactus curiae neminemgravabit: an act of the court shall prejudice no man. In substance what was done therein was to necessitate afresh calculation of the statutory period from the date of receipt of the copy of the order of the court. Granting of further time than the one stipulated in law in a given case as a sequel to the decision to carry out the dictates of the court afresh is not the same as curtailing the statutory period of time to stultify an action otherwise permissible or allowed in law. Consequently, no inspiration can be drawn by the Respondents in this case on the analogy of the said decision.8. Reliance placed on the decision reported in M.M. Krishnamurthy Chetty (1998) 9 SCC 138 is equally inappropriate and ill-conceived. That was a case wherein a learned Judge of the High Court, while setting aside the order passed by the statutory authorities under the Tamil Nadu Land Reforms (Fixation of Ceiling of Land) Act, 1961, remanded the case for fresh consideration specifically in the light of an earlier judgment of the High Court in the case of Naganatha Ayyar v. Authorised Officer 84 MLW 69. While the remand proceedings were pending before the authorised officer, this Court reversed the aforesaid judgment in Authorised Officer v. S. Naganatha Ayyar (1979) 3 SCC 466 and the authorised officer decided the ceiling limit in the remit proceedings in terms of the decision of this Court and not as per the directions of the High Court to determine the same in the light of the earlier High Court judgment. It was held in that case that the order of the High Court directing the authorised officer to examine the dispute in the light of the earlier High Court decision reported in Naganatha (supra) having become final in the absence of any challenge thereto despite the reversal of the earlier High Court judgment by this Court, this Court observed that even orders which may not be strictly legal become final and are binding on the parties if they are not challenged before the superior courts. This Court, while rendering the said decision, was concerned with a direction of the High Court to do a particular thing in a particular manner and unless the binding judgment between parties was set at naught to enable the authority to do it in any other way, it had to be done in a particular manner so directed by the Court or not at all. So far as the case on hand is concerned, since the Court in the earlier proceedings had intervened at the instance of the Respondents the Court was directing the authorities concerned to complete the process within a particular time to avoid further delay and ensure expeditious conclusion of the proceedings. There is nothing to indicate in the order of the High Court stipulating or extending the time for passing the award, that beyond the time so permitted, it cannot be done at all and the authorities are disabled once and for all even to proceed in the matter in accordance with law, if it is so permissible for the authorities under the law governing the matter in issue. The Court cannot be imputed with such an intention to stifle the authorities from exercising powers vested with them under statute or to have rendered an otherwise enforceable statutory provision, a mere dead letter. Neither from the nature and purport of the earlier orders passed nor from their contents, is there any scope for inferring the imposition of a total embargo upon the competent authorities, to exercise the statutory powers indisputably vested with and available to such authorities under the statute, at the time of such exercise.25. Reliance has been placed on Patasi Devi v. State of Haryana (2012) 9 SCC 503 that it was a colourable exercise of power. In the said case this Court found that the acquisition was made in order to oblige the colonizer that was not for a public purpose. The facts are different in the instant case. The property had been acquired for the purpose of systematic development of Calcutta and the same has been handed over to Kolkata Metropolitan Development Corporation for the said purpose. Thus it could not be said that there was colourable exercise of power in the instant case.26. It was also submitted on behalf of Respondents that even if the order is void, it is required to be so declared by the competent forum.It is not permissible to ignore it.In the instant case ratio of the aforesaid dictum is not applicable and it is not the case that the order was void but statutory power has been exercised and considering the nature of command that has been issued in the previous order dated 10.9.1993, the decision in Krishnadevi (supra) is not attracted to the case.There is no question of applicability of res judicata in the instant case. As statutory power has been exercised the statutory action is not stifled by the order of the court. It was stated that the land was proposed to be sold but the Appellants had made it clear that they are not going to sell the property. This Court had held in Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. and Ors. (1996) 11 SCC 501 where the land has been acquired for public purpose may be used for another public purpose; diversion to private purpose is only interdicted.28. In view of the aforesaid discussion, we find that the Division Bench of the High Court has erred in law in quashing the acquisition.
|
Purvi Mukesh Gada Vs. Mukesh Popatlal Gada | without even any court order, lends credence to the version of the appellant that the purpose was to give appropriate tuition to Tanay by the appellant so that his academic year is not wasted. Another fact which needs to be emphasised at this stage is that though the custody of Varenya was also with the respondent and request of the appellant to hand over interim custody of the children did not prevail with the Additional ACMM who rejected this request vide orders dated December 28, 2014 and March 04, 2015, even Varenya was admitted in a boarding school by the respondent thereafter. This fact also gives some credence to the version of the appellant that because of his pre-occupation in the business or otherwise, the respondent was not in a position to take personal care of the children and, therefore, he put both of the children in the boarding schools. 14. After the children came to the appellant, they were admitted in a school in Mumbai. It is pertinent to note that Tanays academic performance has improved significantly. He is getting very high grades in the examinations. In fact, academic performance of Varenya has also gone up. This factor, though noted by the High Court, has been lightly brushed aside with the observations that if the children were not doing well earlier, blame cannot be put on the respondent as it could be the result of disputes between the parents. In the process what is ignored is that in spite of the said dispute still subsisting, the academic performance of the children, while in the custody of their mother, has gone up tremendously. 15. When the special leave petition had come up for hearing, on the first day itself the respondent had appeared through his counsel as a caveator. Children were also brought to the Court and this Court interacted with them. While issuing the notice, based on the interaction with the children, who desired to remain with their mother, directions contained in the impugned judgment were stayed. At the same time, the respondent was given access to these children as well as visitation rights. Notice was issued on March 04, 2016. During the period of pendency of these proceedings for more than a year, the respondent has met the children regularly with the grant of visitation rights. This Court, just before final hearing, again met the children. Tanay is seventeen years of age and Varenya is thirteen years old. At this age, they are capable of understanding where their welfare lies. This Court has found that both the children are very comfortable in the company of their mother. They have expressed their desire to stay with their mother. This Court also feels that welfare of the children lies by allowing the appellant to retain the custody of the children. Circumstances explained above provide adequate reasons for taking this course of action. Children at discernible age of seventeen and thirteen years respectively, are better equipped, mentally as well as psychologically, to take a decision in this behalf. It would be worthwhile to mention that during our interaction with these children, they never spoke ill of their father. In fact, they want to be with the respondent as well and expressed their desire to remain in touch with him and to meet him regularly. They never showed any reluctance in this behalf. At the same time, when it came to choosing a particular parent for the purposes of custody, they preferred their mother. In fact, these were the reasons because of which the Additional ACMM had passed orders dated July 01, 2015 (after interviewing the children and ascertaining their wishes as well as welfare) rejecting the request of the respondent to restore custody to him. Same course of action was adopted by the learned Sessions Court while dismissing the appeal of the respondent on August 06, 2015 and affirming the order of Additional ACMM dated July 01, 2015. The High Court has discarded these orders without giving any cogent reasons and on the spacious and tenuous ground that such orders could not have been passed in view of the earlier detailed orders of the Additional ACMM dated December 28, 2015 and March 04, 2015, thereby refusing the custody of the children to the appellant. In this process, what is ignored by the High Court was that even those were interim orders and the custody was refused at that juncture because of the reason that children were in the mid-term of the academic session. Be that as it may, it was incumbent upon the High Court to find out the welfare of the children as on that time when it was passing the order. As pointed out above, apart from discussing the `welfare principle, the High Court has not done any exercise in weighing the pros and cons for determining as to which of the two alternatives, namely, giving custody to the appellant or to the respondent, is better and more feasible.16. Learned counsel for the respondent had made a fervent plea to the effect that if custody is retained by the appellant, it would amount to giving her advantage of her own wrong as she took undue advantage of the gracious act of the respondent in voluntarily handing over the custody of the children, but only for three days. He also highlighted the conduct of the appellant, as discussed by the High Court, which has castigated the appellant in this behalf in not obeying the interim directions of giving access to the respondent. 17. In view of our aforesaid discussion, we do not find these arguments to be meritorious. It also needs to be emphasised that the Court, in these proceedings, is not concerned with the dispute between the husband and the wife inter se but about the custody of children and their welfare. A holistic approach in this behalf is to be undertaken. Scales tilt in favour of the appellant when the matter is examined from that point of view. | 1[ds]11. We may say at the outset that though the `welfare principle is correctly enunciated and explained in the impugned judgment, no reasons are given as to how this principle weighed, on the facts and circumstances of this case, in favour of the respondent. Instead two main reasons which have influenced the High Court are: (i) earlier detailed orders are passed by the Additional ACMM allowing the respondent to retain the custody; and (ii) the appellant here had not given access of children to the respondent even during weekend, in spite of orders passed by the High Court.After hearing the counsel for the parties at length, we are of the opinion that the matter is not dealt with by the High Court in right perspective. Before supporting these comments with our reasons, it would be apposite to take note of certain developments from June 17, 2015, the date on which the respondent had himself handed over the children to the appellant, till the passing of the orders by the High Court. It is also necessary to state the events which took place during the pendency of these proceedings.When the special leave petition had come up for hearing, on the first day itself the respondent had appeared through his counsel as a caveator. Children were also brought to the Court and this Court interacted with them. While issuing the notice, based on the interaction with the children, who desired to remain with their mother, directions contained in the impugned judgment were stayed. At the same time, the respondent was given access to these children as well as visitation rights. Notice was issued on March 04, 2016. During the period of pendency of these proceedings for more than a year, the respondent has met the children regularly with the grant of visitation rights. This Court, just before final hearing, again met the children. Tanay is seventeen years of age and Varenya is thirteen years old. At this age, they are capable of understanding where their welfare lies. This Court has found that both the children are very comfortable in the company of their mother. They have expressed their desire to stay with their mother. This Court also feels that welfare of the children lies by allowing the appellant to retain the custody of the children. Circumstances explained above provide adequate reasons for taking this course of action. Children at discernible age of seventeen and thirteen years respectively, are better equipped, mentally as well as psychologically, to take a decision in this behalf. It would be worthwhile to mention that during our interaction with these children, they never spoke ill of their father. In fact, they want to be with the respondent as well and expressed their desire to remain in touch with him and to meet him regularly. They never showed any reluctance in this behalf. At the same time, when it came to choosing a particular parent for the purposes of custody, they preferred their mother. In fact, these were the reasons because of which the Additional ACMM had passed orders dated July 01, 2015 (after interviewing the children and ascertaining their wishes as well as welfare) rejecting the request of the respondent to restore custody to him. Same course of action was adopted by the learned Sessions Court while dismissing the appeal of the respondent on August 06, 2015 and affirming the order of Additional ACMM dated July 01, 2015. The High Court has discarded these orders without giving any cogent reasons and on the spacious and tenuous ground that such orders could not have been passed in view of the earlier detailed orders of the Additional ACMM dated December 28, 2015 and March 04, 2015, thereby refusing the custody of the children to the appellant. In this process, what is ignored by the High Court was that even those were interim orders and the custody was refused at that juncture because of the reason that children were in theof the academic session. Be that as it may, it was incumbent upon the High Court to find out the welfare of the children as on that time when it was passing the order. As pointed out above, apart from discussing the `welfare principle, the High Court has not done any exercise in weighing the pros and cons for determining as to which of the two alternatives, namely, giving custody to the appellant or to the respondent, is better and more feasible.In view of our aforesaid discussion, we do not find these arguments to be meritorious. It also needs to be emphasised that the Court, in these proceedings, is not concerned with the dispute between the husband and the wife inter se but about the custody of children and their welfare. A holistic approach in this behalf is to be undertaken. Scales tilt in favour of the appellant when the matter is examined from that point of view. | 1 | 3,754 | 905 | ### 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:
without even any court order, lends credence to the version of the appellant that the purpose was to give appropriate tuition to Tanay by the appellant so that his academic year is not wasted. Another fact which needs to be emphasised at this stage is that though the custody of Varenya was also with the respondent and request of the appellant to hand over interim custody of the children did not prevail with the Additional ACMM who rejected this request vide orders dated December 28, 2014 and March 04, 2015, even Varenya was admitted in a boarding school by the respondent thereafter. This fact also gives some credence to the version of the appellant that because of his pre-occupation in the business or otherwise, the respondent was not in a position to take personal care of the children and, therefore, he put both of the children in the boarding schools. 14. After the children came to the appellant, they were admitted in a school in Mumbai. It is pertinent to note that Tanays academic performance has improved significantly. He is getting very high grades in the examinations. In fact, academic performance of Varenya has also gone up. This factor, though noted by the High Court, has been lightly brushed aside with the observations that if the children were not doing well earlier, blame cannot be put on the respondent as it could be the result of disputes between the parents. In the process what is ignored is that in spite of the said dispute still subsisting, the academic performance of the children, while in the custody of their mother, has gone up tremendously. 15. When the special leave petition had come up for hearing, on the first day itself the respondent had appeared through his counsel as a caveator. Children were also brought to the Court and this Court interacted with them. While issuing the notice, based on the interaction with the children, who desired to remain with their mother, directions contained in the impugned judgment were stayed. At the same time, the respondent was given access to these children as well as visitation rights. Notice was issued on March 04, 2016. During the period of pendency of these proceedings for more than a year, the respondent has met the children regularly with the grant of visitation rights. This Court, just before final hearing, again met the children. Tanay is seventeen years of age and Varenya is thirteen years old. At this age, they are capable of understanding where their welfare lies. This Court has found that both the children are very comfortable in the company of their mother. They have expressed their desire to stay with their mother. This Court also feels that welfare of the children lies by allowing the appellant to retain the custody of the children. Circumstances explained above provide adequate reasons for taking this course of action. Children at discernible age of seventeen and thirteen years respectively, are better equipped, mentally as well as psychologically, to take a decision in this behalf. It would be worthwhile to mention that during our interaction with these children, they never spoke ill of their father. In fact, they want to be with the respondent as well and expressed their desire to remain in touch with him and to meet him regularly. They never showed any reluctance in this behalf. At the same time, when it came to choosing a particular parent for the purposes of custody, they preferred their mother. In fact, these were the reasons because of which the Additional ACMM had passed orders dated July 01, 2015 (after interviewing the children and ascertaining their wishes as well as welfare) rejecting the request of the respondent to restore custody to him. Same course of action was adopted by the learned Sessions Court while dismissing the appeal of the respondent on August 06, 2015 and affirming the order of Additional ACMM dated July 01, 2015. The High Court has discarded these orders without giving any cogent reasons and on the spacious and tenuous ground that such orders could not have been passed in view of the earlier detailed orders of the Additional ACMM dated December 28, 2015 and March 04, 2015, thereby refusing the custody of the children to the appellant. In this process, what is ignored by the High Court was that even those were interim orders and the custody was refused at that juncture because of the reason that children were in the mid-term of the academic session. Be that as it may, it was incumbent upon the High Court to find out the welfare of the children as on that time when it was passing the order. As pointed out above, apart from discussing the `welfare principle, the High Court has not done any exercise in weighing the pros and cons for determining as to which of the two alternatives, namely, giving custody to the appellant or to the respondent, is better and more feasible.16. Learned counsel for the respondent had made a fervent plea to the effect that if custody is retained by the appellant, it would amount to giving her advantage of her own wrong as she took undue advantage of the gracious act of the respondent in voluntarily handing over the custody of the children, but only for three days. He also highlighted the conduct of the appellant, as discussed by the High Court, which has castigated the appellant in this behalf in not obeying the interim directions of giving access to the respondent. 17. In view of our aforesaid discussion, we do not find these arguments to be meritorious. It also needs to be emphasised that the Court, in these proceedings, is not concerned with the dispute between the husband and the wife inter se but about the custody of children and their welfare. A holistic approach in this behalf is to be undertaken. Scales tilt in favour of the appellant when the matter is examined from that point of view.
### Response:
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### Explanation:
11. We may say at the outset that though the `welfare principle is correctly enunciated and explained in the impugned judgment, no reasons are given as to how this principle weighed, on the facts and circumstances of this case, in favour of the respondent. Instead two main reasons which have influenced the High Court are: (i) earlier detailed orders are passed by the Additional ACMM allowing the respondent to retain the custody; and (ii) the appellant here had not given access of children to the respondent even during weekend, in spite of orders passed by the High Court.After hearing the counsel for the parties at length, we are of the opinion that the matter is not dealt with by the High Court in right perspective. Before supporting these comments with our reasons, it would be apposite to take note of certain developments from June 17, 2015, the date on which the respondent had himself handed over the children to the appellant, till the passing of the orders by the High Court. It is also necessary to state the events which took place during the pendency of these proceedings.When the special leave petition had come up for hearing, on the first day itself the respondent had appeared through his counsel as a caveator. Children were also brought to the Court and this Court interacted with them. While issuing the notice, based on the interaction with the children, who desired to remain with their mother, directions contained in the impugned judgment were stayed. At the same time, the respondent was given access to these children as well as visitation rights. Notice was issued on March 04, 2016. During the period of pendency of these proceedings for more than a year, the respondent has met the children regularly with the grant of visitation rights. This Court, just before final hearing, again met the children. Tanay is seventeen years of age and Varenya is thirteen years old. At this age, they are capable of understanding where their welfare lies. This Court has found that both the children are very comfortable in the company of their mother. They have expressed their desire to stay with their mother. This Court also feels that welfare of the children lies by allowing the appellant to retain the custody of the children. Circumstances explained above provide adequate reasons for taking this course of action. Children at discernible age of seventeen and thirteen years respectively, are better equipped, mentally as well as psychologically, to take a decision in this behalf. It would be worthwhile to mention that during our interaction with these children, they never spoke ill of their father. In fact, they want to be with the respondent as well and expressed their desire to remain in touch with him and to meet him regularly. They never showed any reluctance in this behalf. At the same time, when it came to choosing a particular parent for the purposes of custody, they preferred their mother. In fact, these were the reasons because of which the Additional ACMM had passed orders dated July 01, 2015 (after interviewing the children and ascertaining their wishes as well as welfare) rejecting the request of the respondent to restore custody to him. Same course of action was adopted by the learned Sessions Court while dismissing the appeal of the respondent on August 06, 2015 and affirming the order of Additional ACMM dated July 01, 2015. The High Court has discarded these orders without giving any cogent reasons and on the spacious and tenuous ground that such orders could not have been passed in view of the earlier detailed orders of the Additional ACMM dated December 28, 2015 and March 04, 2015, thereby refusing the custody of the children to the appellant. In this process, what is ignored by the High Court was that even those were interim orders and the custody was refused at that juncture because of the reason that children were in theof the academic session. Be that as it may, it was incumbent upon the High Court to find out the welfare of the children as on that time when it was passing the order. As pointed out above, apart from discussing the `welfare principle, the High Court has not done any exercise in weighing the pros and cons for determining as to which of the two alternatives, namely, giving custody to the appellant or to the respondent, is better and more feasible.In view of our aforesaid discussion, we do not find these arguments to be meritorious. It also needs to be emphasised that the Court, in these proceedings, is not concerned with the dispute between the husband and the wife inter se but about the custody of children and their welfare. A holistic approach in this behalf is to be undertaken. Scales tilt in favour of the appellant when the matter is examined from that point of view.
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Municipal Board, Saharanpur Vs. Shahdara (Delhi) Saharanpur Light Rail Co. Ltd | for a sum less than its fair letting value, might reasonably be expected to let from year to year." It becomes obvious in the light of the aforesaid provision that up to the limit of 5 per cent of the annual value, the Board can impose house tax on immovable properties, like railway stations, hotels, colleges, schools, hospitals etc. mentioned in the said provision but for doing so the estimated present cost of erected buildings concerned has to be kept in view and also the estimated value of the land appurtenant thereto is also to be taken into consideration. Now, the phrase "estimated present cost of erecting the building" is entirely differently worded as compared to the phrase "estimated value of the land appurtenant thereto". The value of the building as well as the land appurtenant once arrived at will have to be added for computing 5 per cent ceiling up to which by rules the Municipal Board can impose house tax on the buildings concerned. It becomes at once clear that when appurtenant land is to be valued its valuation has to be made as per its market value obtaining at the time of assessment. But so far as the value of the building to which such land is appurtenant goes, the computation has to be made on the estimated present cost of erecting the building to be subject to the tax. Meaning thereby, at the time of assessment the cost of construction of such building in its existing state is to be kept in view. Hence such cost must be arrived at by keeping in view the then existing state of the building and the cost which would be incurred for erecting such a building. Consequently it becomes obvious that while estimating the present cost of erecting the building concerned, the assessing authority has to keep in view the life of the building and also the fact as to when it was earlier constructed and in what present state the building is and what will be the cost of erecting a new building so as to result into erection of such an old building keeping in view its life and wear and tear from which it has suffered since it was put up. It is obvious that if the building is an old one the present cost of erecting such building would necessarily require further consideration as to what would be the depreciated value of such a building, if a new building is erected at the time of assessment. Such cost, obviously, has to be sliced down by giving due weight to the depreciation so as to make estimation of present cost of the new building to ultimately become equal to the erection cost of the building concerned in its depreciated state. Consequently, it cannot be said that 10 per cent depreciation allowed by the District Magistrate and as confirmed by the High Court on the total estimated cost of the building for bringing it within the assessable tax net of house tax was an exercise which was ultra vires provisions of the Act or beyond the jurisdiction of the assessing authority. On the facts governing the case, it is seen that the railway station belonging to the respondent, was as old as 1905, there may be other buildings within the complex which might have seen the light of the day years before the time of assessment. Naturally, they would not be new buildings which could have said to have been put up only at the time of assessment proceedings. They were obviously old buildings. It is not the case of the appellant or any of them that these buildings were new buildings recently constructed when assessment proceedings were initiated. Consequently, a flat rate of 10 per cent depreciation as granted by the District Magistrate while computing the annual value for house tax purposes, in the present case, cannot said to be an unauthorised exercise. The third point for determination, therefore, has to be answered in the affirmative against the appellant and in favour of the respondent. Point No. 4: 9. As a result of the aforesaid discussion, this appeal succeeds so far as the first point is concerned. However, it stands rejected so far as the last two contentions are concerned. The appeal is partly allowed accordingly and the Judgment and Order of the Division Bench will stand modified in terms of this judgment in favour of the appellant Board. Before parting with this appeal, we may mention that during the pendency of this appeal, by an interim order dated 20th January, 1977, a three-Judge Bench of this Court, directed as under : "There will be stay of restitution pending the disposal of the appeal.The appellant undertakes not to press the demand for the recovery of the amount of Rs. 98,950/- and any future dues from the respondent during the pendency of the appeal in this Court.The hearing of the appeal is expedited and the same shall be listed for hearing along with C.A.1218/76." 10. It is obvious that the aforesaid order insofar as the interim stay deals with the right of the appellant Board to impose water-tax on all the buildings situated within the "common compound" of the respondent is concerned, now there will remain no occasion for the appellant Board to grant any restitution to the respondent so far as recovery of water-tax for the relevant time in dispute is concerned. It will also be open to the appellant Board to press for payment of reconvey of water-tax which has remained unpaid by the respondent for the relevant year subject to assessment of all buildings as separate units of taxation. However, as the appellant fails on the question of levy of house tax as decided against it while answering point No. 2, so far as house tax levy is concerned, it will abide by the result of this appeal which is partly decided against the appellant and will be assessed accordingly for the relevant years. | 1[ds]For imposing house tax on buildings under Section 140(1)(a) it has to be shown that the buildings with their common appurtenant land or the land in common appurtenance to several buildings situated nearby are available for imposing such a tax thereon. It is only such appurtenant land which can form part of the buildings for attractingassessment proceedings. But if the "common compound" in which such buildings with appurtenant lands are situated also includes land which cannot be said to be a common appurtenance to several buildings situated therein or separately appurtenant to any given building, such land would be outside the sweep of the term "building". Such land, however, on its own could be legitimately made the subject matter of separate levy of house tax as an independent unit being open land. As seen from Section 140(1)(b) itself as the Board can impose the tax on annual value of lands which may not be covered by the sweep of the definition of the term "building". Once that conclusion is reached, it becomes obvious that all the buildings situated along with their appurtenant lands in one "common compound" belonging to the same owner cannot be treated as one unit for the purpose of imposing house tax under Section 128(1)(i). The reasoning of the High Court in this connection cannot be found fault with on the scheme of the Act. It is pertinent to note that "common compound" which is relevant for theas per Section 129 of the Act to which we have made a detailed reference while deciding the companion appeal No. 1218 of 1976 is conspicuously absent in connection with imposition of house tax on the annual value of buildings or lands or both as found in Section 128(1)(i). We, therefore, endorse the reasoning of the Division Bench of the High Court which rejected this contention of the appellant Board. Point No. 2 is, therefore answered in the negative against the appellant and in favour of theis obvious that if the building is an old one the present cost of erecting such building would necessarily require further consideration as to what would be the depreciated value of such a building, if a new building is erected at the time of assessment. Such cost, obviously, has to be sliced down by giving due weight to the depreciation so as to make estimation of present cost of the new building to ultimately become equal to the erection cost of the building concerned in its depreciated state. Consequently, it cannot be said that 10 per cent depreciation allowed by the District Magistrate and as confirmed by the High Court on the total estimated cost of the building for bringing it within the assessable tax net of house tax was an exercise which was ultra vires provisions of the Act or beyond the jurisdiction of the assessing authority. On the facts governing the case, it is seen that the railway station belonging to the respondent, was as old as 1905, there may be other buildings within the complex which might have seen the light of the day years before the time of assessment. Naturally, they would not be new buildings which could have said to have been put up only at the time of assessment proceedings. They were obviously old buildings. It is not the case of the appellant or any of them that these buildings were new buildings recently constructed when assessment proceedings were initiated. Consequently, a flat rate of 10 per cent depreciation as granted by the District Magistrate while computing the annual value for house tax purposes, in the present case, cannot said to be an unauthorised exercise. The third point for determination, therefore, has to be answered in the affirmative against the appellant and in favour of theis obvious that the aforesaid order insofar as the interim stay deals with the right of the appellant Board to imposeon all the buildings situated within the "common compound" of the respondent is concerned, now there will remain no occasion for the appellant Board to grant any restitution to the respondent so far as recovery offor the relevant time in dispute is concerned. It will also be open to the appellant Board to press for payment of reconvey ofwhich has remained unpaid by the respondent for the relevant year subject to assessment of all buildings as separate units of taxation. However, as the appellant fails on the question of levy of house tax as decided against it while answering point No. 2, so far as house tax levy is concerned, it will abide by the result of this appeal which is partly decided against the appellant and will be assessed accordingly for the relevant years. | 1 | 4,395 | 874 | ### 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:
for a sum less than its fair letting value, might reasonably be expected to let from year to year." It becomes obvious in the light of the aforesaid provision that up to the limit of 5 per cent of the annual value, the Board can impose house tax on immovable properties, like railway stations, hotels, colleges, schools, hospitals etc. mentioned in the said provision but for doing so the estimated present cost of erected buildings concerned has to be kept in view and also the estimated value of the land appurtenant thereto is also to be taken into consideration. Now, the phrase "estimated present cost of erecting the building" is entirely differently worded as compared to the phrase "estimated value of the land appurtenant thereto". The value of the building as well as the land appurtenant once arrived at will have to be added for computing 5 per cent ceiling up to which by rules the Municipal Board can impose house tax on the buildings concerned. It becomes at once clear that when appurtenant land is to be valued its valuation has to be made as per its market value obtaining at the time of assessment. But so far as the value of the building to which such land is appurtenant goes, the computation has to be made on the estimated present cost of erecting the building to be subject to the tax. Meaning thereby, at the time of assessment the cost of construction of such building in its existing state is to be kept in view. Hence such cost must be arrived at by keeping in view the then existing state of the building and the cost which would be incurred for erecting such a building. Consequently it becomes obvious that while estimating the present cost of erecting the building concerned, the assessing authority has to keep in view the life of the building and also the fact as to when it was earlier constructed and in what present state the building is and what will be the cost of erecting a new building so as to result into erection of such an old building keeping in view its life and wear and tear from which it has suffered since it was put up. It is obvious that if the building is an old one the present cost of erecting such building would necessarily require further consideration as to what would be the depreciated value of such a building, if a new building is erected at the time of assessment. Such cost, obviously, has to be sliced down by giving due weight to the depreciation so as to make estimation of present cost of the new building to ultimately become equal to the erection cost of the building concerned in its depreciated state. Consequently, it cannot be said that 10 per cent depreciation allowed by the District Magistrate and as confirmed by the High Court on the total estimated cost of the building for bringing it within the assessable tax net of house tax was an exercise which was ultra vires provisions of the Act or beyond the jurisdiction of the assessing authority. On the facts governing the case, it is seen that the railway station belonging to the respondent, was as old as 1905, there may be other buildings within the complex which might have seen the light of the day years before the time of assessment. Naturally, they would not be new buildings which could have said to have been put up only at the time of assessment proceedings. They were obviously old buildings. It is not the case of the appellant or any of them that these buildings were new buildings recently constructed when assessment proceedings were initiated. Consequently, a flat rate of 10 per cent depreciation as granted by the District Magistrate while computing the annual value for house tax purposes, in the present case, cannot said to be an unauthorised exercise. The third point for determination, therefore, has to be answered in the affirmative against the appellant and in favour of the respondent. Point No. 4: 9. As a result of the aforesaid discussion, this appeal succeeds so far as the first point is concerned. However, it stands rejected so far as the last two contentions are concerned. The appeal is partly allowed accordingly and the Judgment and Order of the Division Bench will stand modified in terms of this judgment in favour of the appellant Board. Before parting with this appeal, we may mention that during the pendency of this appeal, by an interim order dated 20th January, 1977, a three-Judge Bench of this Court, directed as under : "There will be stay of restitution pending the disposal of the appeal.The appellant undertakes not to press the demand for the recovery of the amount of Rs. 98,950/- and any future dues from the respondent during the pendency of the appeal in this Court.The hearing of the appeal is expedited and the same shall be listed for hearing along with C.A.1218/76." 10. It is obvious that the aforesaid order insofar as the interim stay deals with the right of the appellant Board to impose water-tax on all the buildings situated within the "common compound" of the respondent is concerned, now there will remain no occasion for the appellant Board to grant any restitution to the respondent so far as recovery of water-tax for the relevant time in dispute is concerned. It will also be open to the appellant Board to press for payment of reconvey of water-tax which has remained unpaid by the respondent for the relevant year subject to assessment of all buildings as separate units of taxation. However, as the appellant fails on the question of levy of house tax as decided against it while answering point No. 2, so far as house tax levy is concerned, it will abide by the result of this appeal which is partly decided against the appellant and will be assessed accordingly for the relevant years.
### Response:
1
### Explanation:
For imposing house tax on buildings under Section 140(1)(a) it has to be shown that the buildings with their common appurtenant land or the land in common appurtenance to several buildings situated nearby are available for imposing such a tax thereon. It is only such appurtenant land which can form part of the buildings for attractingassessment proceedings. But if the "common compound" in which such buildings with appurtenant lands are situated also includes land which cannot be said to be a common appurtenance to several buildings situated therein or separately appurtenant to any given building, such land would be outside the sweep of the term "building". Such land, however, on its own could be legitimately made the subject matter of separate levy of house tax as an independent unit being open land. As seen from Section 140(1)(b) itself as the Board can impose the tax on annual value of lands which may not be covered by the sweep of the definition of the term "building". Once that conclusion is reached, it becomes obvious that all the buildings situated along with their appurtenant lands in one "common compound" belonging to the same owner cannot be treated as one unit for the purpose of imposing house tax under Section 128(1)(i). The reasoning of the High Court in this connection cannot be found fault with on the scheme of the Act. It is pertinent to note that "common compound" which is relevant for theas per Section 129 of the Act to which we have made a detailed reference while deciding the companion appeal No. 1218 of 1976 is conspicuously absent in connection with imposition of house tax on the annual value of buildings or lands or both as found in Section 128(1)(i). We, therefore, endorse the reasoning of the Division Bench of the High Court which rejected this contention of the appellant Board. Point No. 2 is, therefore answered in the negative against the appellant and in favour of theis obvious that if the building is an old one the present cost of erecting such building would necessarily require further consideration as to what would be the depreciated value of such a building, if a new building is erected at the time of assessment. Such cost, obviously, has to be sliced down by giving due weight to the depreciation so as to make estimation of present cost of the new building to ultimately become equal to the erection cost of the building concerned in its depreciated state. Consequently, it cannot be said that 10 per cent depreciation allowed by the District Magistrate and as confirmed by the High Court on the total estimated cost of the building for bringing it within the assessable tax net of house tax was an exercise which was ultra vires provisions of the Act or beyond the jurisdiction of the assessing authority. On the facts governing the case, it is seen that the railway station belonging to the respondent, was as old as 1905, there may be other buildings within the complex which might have seen the light of the day years before the time of assessment. Naturally, they would not be new buildings which could have said to have been put up only at the time of assessment proceedings. They were obviously old buildings. It is not the case of the appellant or any of them that these buildings were new buildings recently constructed when assessment proceedings were initiated. Consequently, a flat rate of 10 per cent depreciation as granted by the District Magistrate while computing the annual value for house tax purposes, in the present case, cannot said to be an unauthorised exercise. The third point for determination, therefore, has to be answered in the affirmative against the appellant and in favour of theis obvious that the aforesaid order insofar as the interim stay deals with the right of the appellant Board to imposeon all the buildings situated within the "common compound" of the respondent is concerned, now there will remain no occasion for the appellant Board to grant any restitution to the respondent so far as recovery offor the relevant time in dispute is concerned. It will also be open to the appellant Board to press for payment of reconvey ofwhich has remained unpaid by the respondent for the relevant year subject to assessment of all buildings as separate units of taxation. However, as the appellant fails on the question of levy of house tax as decided against it while answering point No. 2, so far as house tax levy is concerned, it will abide by the result of this appeal which is partly decided against the appellant and will be assessed accordingly for the relevant years.
|
Inland Steam Navigation Works'Union &Anr Vs. U.O.I. | It was also held that the transferee Corporation has no obligation whatsoever in relation to payment of compensation, etc. to the workmen as per the list attached and these workmen are not entitled to any relief whatsoever. This award was challenged before the High Court and the High Court held that the none of the reliefs could be granted to the appellant union and so far as claim made in respect of compensation under Section 25FFF of the ID Act, the High Court took the view that the appellant union can claim the same but the quantum of compensation can be determined by a Court in accordance with law in the presence of necessary parties. The writ petition was accordingly disposed of. Against this order, the present appeal is filed by special leave. 8. Before us it is contended that the Division Bench of the High Court while dealing with the appeal arising out of the company matter held that it was not within the scope of the scheme to find out first whether there was a closure of the company within the meaning of the ID Act and that claim of the workmen under the ID Act based on agreement dated 25.8.1965 was not within the jurisdiction and province of the application for sanction of the scheme and that the agreement will have to be enforced in a properly constituted proceedings. The stand of the appellant union is that in view of this statement made in the course of the order according sanction of the scheme for dissolution of the company it could be inferred that it was a case of reconstruction of the company, the properties and the assets are transferred to and vested in the Corporation by the members of the company. Liabilities in relation to creditors have nothing to do with the matter of employment in relation to River Transport Undertaking continued by Corporation after sanction of the scheme as employer as defined by Section 2(g) of the ID Act and in support of this proposition relied upon the decision in Central Bank of India Ltd. v. P.S. Rajagopalan, 1964(3) SCR 140. 9. The party in person emphasised that this Court in Central Inland Water Transport Corporation Ltd. (supra) observed that there is no actual change of employer by reason of the transfer nor do the three clauses of Section 25F of the ID Act apply. Therefore, prima facie the claim of the workmen would be either for work or for compensation under Section 25FF of the ID Act against the Corporation. It is also submitted that the workmen belonged to the under-privileged segments of the society and were exploited and dominated and that the scheme did not reveal discontinuity in service and that they had not impleaded Union of India as party in the proceedings initiated earlier. Therefore, it is contended that the appellant union are entitled to relief at any rate from the defunct company and in terms of the agreement the monetary compensation will have to be paid by the Union of India, wherever the workmen of the erstwhile company are not absorbed in service of the Corporation. 10. This Court in Central Indland Water Transport Corporation Ltd. (supra) took the view that the liability of the Corporation would not arise in the case because the question as to whether the transferee of an undertaking is a successor or not involves several factors. So far as the claim against the Corporation is concerned this Court made if clear that the workers who were taken over by the Corporation were given fresh appointments from June 5, 1967 with different conditions of service and there was break in the condition of service. Even assuming that on such investigation, conclusion could be drawn that the Corporation is a successor the matter will not be settled because, the transferee even as a successor would be liable neither to pay compensation nor to re-employ the workmen whose employment stood automatically terminated on the transfer. Where by operation of law the employment of workmen stands terminated, it may be difficult to sustain it on the basis of a term in a settlement prohibiting retrenchment, though statutorily binding on the transferee as a successor. Therefore, the view taken by the Tribunal that the Corporation is not liable to pay either compensation or to absorb the workmen in question is unexceptionable. As rightly held by the High Court, the workmen in question are entitled to compensation in case of closing down of an undertaking. Here there has been no transfer of the undertaking from the company to the Corporation as found by the Tribunal and upheld by the High Court because by order made by the company court the scheme of arrangement was to close down the company and what was taken over by the Corporation was a separate arrangement. Therefore, in the eye of law what is to be held is that the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer and every workman who has been in service for more than ten years in that undertaking immediately before such closure shall be entitled to notice and compensation in accordance with the provision of Section 25F as if the workman has been retrenched. In case where an undertaking is closed down by reason of financial difficulties as was the position in the present case it cannot be deemed to have been closed down on account of unavoidable circumstances beyond the control of the employer. Therefore, if an application is made by the workmen or by the union on their behalf before a Labour Court under Section 33C(2) of the ID Act it will be proper for the Labour Court to examine the claims under Section 25FFF of the ID Act, of each of these workmen and award compensation accordingly which shall be payable by the Union of India and to those proceedings the erstwhile company and the Union of India shall be parties. | 1[ds]10. This Court in Central Indland Water Transport Corporation Ltd. (supra) took the view that the liability of the Corporation would not arise in the case because the question as to whether the transferee of an undertaking is a successor or not involves several factors. So far as the claim against the Corporation is concerned this Court made if clear that the workers who were taken over by the Corporation were given fresh appointments from June 5, 1967 with different conditions of service and there was break in the condition of service. Even assuming that on such investigation, conclusion could be drawn that the Corporation is a successor the matter will not be settled because, the transferee even as a successor would be liable neither to pay compensation nor to re-employ the workmen whose employment stood automatically terminated on the transfer. Where by operation of law the employment of workmen stands terminated, it may be difficult to sustain it on the basis of a term in a settlement prohibiting retrenchment, though statutorily binding on the transferee as a successor. Therefore, the view taken by the Tribunal that the Corporation is not liable to pay either compensation or to absorb the workmen in question is unexceptionable. As rightly held by the High Court, the workmen in question are entitled to compensation in case of closing down of an undertaking. Here there has been no transfer of the undertaking from the company to the Corporation as found by the Tribunal and upheld by the High Court because by order made by the company court the scheme of arrangement was to close down the company and what was taken over by the Corporation was a separate arrangement. Therefore, in the eye of law what is to be held is that the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer and every workman who has been in service for more than ten years in that undertaking immediately before such closure shall be entitled to notice and compensation in accordance with the provision of Section 25F as if the workman has been retrenched. In case where an undertaking is closed down by reason of financial difficulties as was the position in the present case it cannot be deemed to have been closed down on account of unavoidable circumstances beyond the control of the employer. Therefore, if an application is made by the workmen or by the union on their behalf before a Labour Court under Section 33C(2) of the ID Act it will be proper for the Labour Court to examine the claims under Section 25FFF of the ID Act, of each of these workmen and award compensation accordingly which shall be payable by the Union of India and to those proceedings the erstwhile company and the Union of India shall be parties. | 1 | 2,943 | 506 | ### 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:
It was also held that the transferee Corporation has no obligation whatsoever in relation to payment of compensation, etc. to the workmen as per the list attached and these workmen are not entitled to any relief whatsoever. This award was challenged before the High Court and the High Court held that the none of the reliefs could be granted to the appellant union and so far as claim made in respect of compensation under Section 25FFF of the ID Act, the High Court took the view that the appellant union can claim the same but the quantum of compensation can be determined by a Court in accordance with law in the presence of necessary parties. The writ petition was accordingly disposed of. Against this order, the present appeal is filed by special leave. 8. Before us it is contended that the Division Bench of the High Court while dealing with the appeal arising out of the company matter held that it was not within the scope of the scheme to find out first whether there was a closure of the company within the meaning of the ID Act and that claim of the workmen under the ID Act based on agreement dated 25.8.1965 was not within the jurisdiction and province of the application for sanction of the scheme and that the agreement will have to be enforced in a properly constituted proceedings. The stand of the appellant union is that in view of this statement made in the course of the order according sanction of the scheme for dissolution of the company it could be inferred that it was a case of reconstruction of the company, the properties and the assets are transferred to and vested in the Corporation by the members of the company. Liabilities in relation to creditors have nothing to do with the matter of employment in relation to River Transport Undertaking continued by Corporation after sanction of the scheme as employer as defined by Section 2(g) of the ID Act and in support of this proposition relied upon the decision in Central Bank of India Ltd. v. P.S. Rajagopalan, 1964(3) SCR 140. 9. The party in person emphasised that this Court in Central Inland Water Transport Corporation Ltd. (supra) observed that there is no actual change of employer by reason of the transfer nor do the three clauses of Section 25F of the ID Act apply. Therefore, prima facie the claim of the workmen would be either for work or for compensation under Section 25FF of the ID Act against the Corporation. It is also submitted that the workmen belonged to the under-privileged segments of the society and were exploited and dominated and that the scheme did not reveal discontinuity in service and that they had not impleaded Union of India as party in the proceedings initiated earlier. Therefore, it is contended that the appellant union are entitled to relief at any rate from the defunct company and in terms of the agreement the monetary compensation will have to be paid by the Union of India, wherever the workmen of the erstwhile company are not absorbed in service of the Corporation. 10. This Court in Central Indland Water Transport Corporation Ltd. (supra) took the view that the liability of the Corporation would not arise in the case because the question as to whether the transferee of an undertaking is a successor or not involves several factors. So far as the claim against the Corporation is concerned this Court made if clear that the workers who were taken over by the Corporation were given fresh appointments from June 5, 1967 with different conditions of service and there was break in the condition of service. Even assuming that on such investigation, conclusion could be drawn that the Corporation is a successor the matter will not be settled because, the transferee even as a successor would be liable neither to pay compensation nor to re-employ the workmen whose employment stood automatically terminated on the transfer. Where by operation of law the employment of workmen stands terminated, it may be difficult to sustain it on the basis of a term in a settlement prohibiting retrenchment, though statutorily binding on the transferee as a successor. Therefore, the view taken by the Tribunal that the Corporation is not liable to pay either compensation or to absorb the workmen in question is unexceptionable. As rightly held by the High Court, the workmen in question are entitled to compensation in case of closing down of an undertaking. Here there has been no transfer of the undertaking from the company to the Corporation as found by the Tribunal and upheld by the High Court because by order made by the company court the scheme of arrangement was to close down the company and what was taken over by the Corporation was a separate arrangement. Therefore, in the eye of law what is to be held is that the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer and every workman who has been in service for more than ten years in that undertaking immediately before such closure shall be entitled to notice and compensation in accordance with the provision of Section 25F as if the workman has been retrenched. In case where an undertaking is closed down by reason of financial difficulties as was the position in the present case it cannot be deemed to have been closed down on account of unavoidable circumstances beyond the control of the employer. Therefore, if an application is made by the workmen or by the union on their behalf before a Labour Court under Section 33C(2) of the ID Act it will be proper for the Labour Court to examine the claims under Section 25FFF of the ID Act, of each of these workmen and award compensation accordingly which shall be payable by the Union of India and to those proceedings the erstwhile company and the Union of India shall be parties.
### Response:
1
### Explanation:
10. This Court in Central Indland Water Transport Corporation Ltd. (supra) took the view that the liability of the Corporation would not arise in the case because the question as to whether the transferee of an undertaking is a successor or not involves several factors. So far as the claim against the Corporation is concerned this Court made if clear that the workers who were taken over by the Corporation were given fresh appointments from June 5, 1967 with different conditions of service and there was break in the condition of service. Even assuming that on such investigation, conclusion could be drawn that the Corporation is a successor the matter will not be settled because, the transferee even as a successor would be liable neither to pay compensation nor to re-employ the workmen whose employment stood automatically terminated on the transfer. Where by operation of law the employment of workmen stands terminated, it may be difficult to sustain it on the basis of a term in a settlement prohibiting retrenchment, though statutorily binding on the transferee as a successor. Therefore, the view taken by the Tribunal that the Corporation is not liable to pay either compensation or to absorb the workmen in question is unexceptionable. As rightly held by the High Court, the workmen in question are entitled to compensation in case of closing down of an undertaking. Here there has been no transfer of the undertaking from the company to the Corporation as found by the Tribunal and upheld by the High Court because by order made by the company court the scheme of arrangement was to close down the company and what was taken over by the Corporation was a separate arrangement. Therefore, in the eye of law what is to be held is that the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer and every workman who has been in service for more than ten years in that undertaking immediately before such closure shall be entitled to notice and compensation in accordance with the provision of Section 25F as if the workman has been retrenched. In case where an undertaking is closed down by reason of financial difficulties as was the position in the present case it cannot be deemed to have been closed down on account of unavoidable circumstances beyond the control of the employer. Therefore, if an application is made by the workmen or by the union on their behalf before a Labour Court under Section 33C(2) of the ID Act it will be proper for the Labour Court to examine the claims under Section 25FFF of the ID Act, of each of these workmen and award compensation accordingly which shall be payable by the Union of India and to those proceedings the erstwhile company and the Union of India shall be parties.
|
Ram Chandra Arya Vs. Man Singh & Anr | to the case before us at all. In that case, a stranger to the suit was the auction-purchaser of the judgment-debtors immovable property in execution of an ex parte money decree. Before the sale could be affirmed, the ex parte decree was set aside and the question arose whether the auction-purchaser was entitled to a confirmation of the sale under 0. 21, R. 92 C.P.C. The Court held that the sale should be confirmed. The law makes ample provision for the protection of the interest of the judgment-debtor, when his property is sold in execution. He can file an application for setting aside the sale under the provisions of 0. 21, Rr. 89 and 90, C.P.C. If no such application was made, or when such an application was made and disallowed, the Court has no choice but to confirm the sale. This principle can be of no assistance to the appellant in the present case, because in that case when the sale was actually held a valid ex parte decree did exist. The sale having been held in execution of a valid existing decree, was itself valid, and the only question that came up for decision was whether such a valid sale could he set aside otherwise than by resort to the provisions of Rules 89 and 90 of Order 21, Civil Procedure Code.In the present case the decree being a nullity, has to be treated as non est and, consequently the sale, when held, was void ab initio. In such a case, there is no question of any party having to resort to the provisions of Rr. 89 and 90 of 0. 21, C. P. C. to have the sale set aside. Any claim based on a void safe can be resisted without haying that sale set aside. The decision of this Court in that case itself bring out this distinction by stating:"It is to be noted however, that there may be cases in which, apart from the provisions of Rr. 89 to 91, the Court may refuse to confirm a sale, as, for instance, where a sale held without giving notice to the judgment-debtor, or where the Court is misled in fixing the reserve price or when there was no decree in existence at the time when the sale was held." This Court, thus, in that case, clearly recognised that, if there be no decree in existence at the time when the sale is held, the sale can be ignored and need not be set aside under the provisions of Rr. 89 to 91, C.P.C.In the present case, as we have held, the decree passed against Ram Lal was void and has to be treated as non-existent and, consequently, the sale must be held to be a nullity. 5. Learned Counsel also referred us to the decision of the Privy Council in Khiarajamal v. Daim, (1904) 32 Ind App 23 (PC), but even that case, in our opinion, does not help the appellant. In that case, the equity of redemption in respect of certain property was sold in execution of decrees without service of notice on some of the mortgagors. The Privy Council held :"Their Lordships agree that the sales cannot be treated as void or now be avoided on the grounds of any mere irregularities of procedure in obtaining the decrees or in the execution of them. But, on the other hand, the Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record. As against such persons the decrees and sales purporting to be made would be a nullity and might be disregarded without any proceeding to set them aside." Proceeding further and dealing with the case of one of the mortgagors, it was held that, because his interest in the property had been ignored altogether and there was no decree against him, the Court had no jurisdiction to sell his share. The portion of the judgment, the remarks made by the Privy Council when on which learned Counsel relied, related to dealing with an earlier decision in Malkarjun v. Narhari, (1900) 27 Ind App 216 (PC). After discussing the ratio of that case, their Lordships at the end remarked:"In coming to this conclusion, their Lordships are quite sensible of the importance of upholding the title of persons who buy under a judicial sale: but in the present case the real purchaser was the judgment creditor who must be held to have had notice of all the facts." On the basis of this comment, it was urged that their Lordships of the Privy Council intended to lay down that, if the auction-purchaser was not a judgment-creditor, the sale could not be a nullity. We are unable to read any such principle in that decision. In fact, the Privy Council, in very clear words, held that the sale was a nullity and only, at the and, took notice of the fact that, in that particular case before it, the real purchaser happened to be the judgment creditor, so that the interest of a stranger purchaser could not be defeated by him. We are not prepared to read in that judgment any decision that, if the auction-purchaser is not the judgment creditor but a stranger, the sale would be a valid sale, even though it was held in execution of a decree which was void. A sale is void ab initio if it is held in execution of a decree which is a nullity and consequently, to be treated as non-existent. In the present case therefore, no rights could be acquired by the purchaser Prabhu Dayal, the father of the appellant, when he purported to purchase the house in execution of the decree against Ram Lal. Ram Lal having died without leaving any heir, the property naturally passed by escheat to the Maharaja of Jaipur.That principle is clearly recognised in Hindu Law. Reference may be made to Mullas Hindu Law, 13th Edition, p. 133, para 59. | 1[ds]It appeals from the judgment of the High Court that, in that Court, no attempt was made on behalf of the appellant to contend that the decree which was obtained against Ram Lal and in execution of which the house was sold was not null and void and was not a nullity. On the face of it, the decree was passed in contravention of the provisions of O. 32, R. 15 of theCode of Civil Procedure. It has been found as a feet that Ram Lal was insane when suit No. 354 of 1939 was instituted as well as when the house was sold in execution of the decree passed in that suit.It is now a well-settled principle that, if a decree is passed against a minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable. This principle becomes applicable to the case of a lunatic in view of R. 15 of O. 32 of theCode of Civil Procedure so that the decree obtained against Ram Lal was a decree which, has to be treated as without jurisdiction and void. In these circumstances, the sale held in execution of that decree must also be held to be voidThis Court, thus, in that case, clearly recognised that, if there be no decree in existence at the time when the sale is held, the sale can be ignored and need not be set aside under the provisions of Rr. 89 to 91, C.P.C.In the present case, as we have held, the decree passed against Ram Lal was void and has to be treated as non-existent and, consequently, the sale must be held to be a nullitybut even that case, in our opinion, does not help the appellantWe are unable to read any such principle in that decision. In fact, the Privy Council, in very clear words, held that the sale was a nullity and only, at the and, took notice of the fact that, in that particular case before it, the real purchaser happened to be the judgment creditor, so that the interest of a stranger purchaser could not be defeated by him. We are not prepared to read in that judgment any decision that, if the auction-purchaser is not the judgment creditor but a stranger, the sale would be a valid sale, even though it was held in execution of a decree which was void. A sale is void ab initio if it is held in execution of a decree which is a nullity and consequently, to be treated as non-existent. In the present case therefore, no rights could be acquired by the purchaser Prabhu Dayal, the father of the appellant, when he purported to purchase the house in execution of the decree against Ram Lal. Ram Lal having died without leaving any heir, the property naturally passed by escheat to the Maharaja of Jaipur.That principle is clearly recognised in Hindu Law. Reference may be made to Mullas Hindu Law, 13th Edition, p. 133, para 59. | 1 | 1,874 | 561 | ### 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:
to the case before us at all. In that case, a stranger to the suit was the auction-purchaser of the judgment-debtors immovable property in execution of an ex parte money decree. Before the sale could be affirmed, the ex parte decree was set aside and the question arose whether the auction-purchaser was entitled to a confirmation of the sale under 0. 21, R. 92 C.P.C. The Court held that the sale should be confirmed. The law makes ample provision for the protection of the interest of the judgment-debtor, when his property is sold in execution. He can file an application for setting aside the sale under the provisions of 0. 21, Rr. 89 and 90, C.P.C. If no such application was made, or when such an application was made and disallowed, the Court has no choice but to confirm the sale. This principle can be of no assistance to the appellant in the present case, because in that case when the sale was actually held a valid ex parte decree did exist. The sale having been held in execution of a valid existing decree, was itself valid, and the only question that came up for decision was whether such a valid sale could he set aside otherwise than by resort to the provisions of Rules 89 and 90 of Order 21, Civil Procedure Code.In the present case the decree being a nullity, has to be treated as non est and, consequently the sale, when held, was void ab initio. In such a case, there is no question of any party having to resort to the provisions of Rr. 89 and 90 of 0. 21, C. P. C. to have the sale set aside. Any claim based on a void safe can be resisted without haying that sale set aside. The decision of this Court in that case itself bring out this distinction by stating:"It is to be noted however, that there may be cases in which, apart from the provisions of Rr. 89 to 91, the Court may refuse to confirm a sale, as, for instance, where a sale held without giving notice to the judgment-debtor, or where the Court is misled in fixing the reserve price or when there was no decree in existence at the time when the sale was held." This Court, thus, in that case, clearly recognised that, if there be no decree in existence at the time when the sale is held, the sale can be ignored and need not be set aside under the provisions of Rr. 89 to 91, C.P.C.In the present case, as we have held, the decree passed against Ram Lal was void and has to be treated as non-existent and, consequently, the sale must be held to be a nullity. 5. Learned Counsel also referred us to the decision of the Privy Council in Khiarajamal v. Daim, (1904) 32 Ind App 23 (PC), but even that case, in our opinion, does not help the appellant. In that case, the equity of redemption in respect of certain property was sold in execution of decrees without service of notice on some of the mortgagors. The Privy Council held :"Their Lordships agree that the sales cannot be treated as void or now be avoided on the grounds of any mere irregularities of procedure in obtaining the decrees or in the execution of them. But, on the other hand, the Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record. As against such persons the decrees and sales purporting to be made would be a nullity and might be disregarded without any proceeding to set them aside." Proceeding further and dealing with the case of one of the mortgagors, it was held that, because his interest in the property had been ignored altogether and there was no decree against him, the Court had no jurisdiction to sell his share. The portion of the judgment, the remarks made by the Privy Council when on which learned Counsel relied, related to dealing with an earlier decision in Malkarjun v. Narhari, (1900) 27 Ind App 216 (PC). After discussing the ratio of that case, their Lordships at the end remarked:"In coming to this conclusion, their Lordships are quite sensible of the importance of upholding the title of persons who buy under a judicial sale: but in the present case the real purchaser was the judgment creditor who must be held to have had notice of all the facts." On the basis of this comment, it was urged that their Lordships of the Privy Council intended to lay down that, if the auction-purchaser was not a judgment-creditor, the sale could not be a nullity. We are unable to read any such principle in that decision. In fact, the Privy Council, in very clear words, held that the sale was a nullity and only, at the and, took notice of the fact that, in that particular case before it, the real purchaser happened to be the judgment creditor, so that the interest of a stranger purchaser could not be defeated by him. We are not prepared to read in that judgment any decision that, if the auction-purchaser is not the judgment creditor but a stranger, the sale would be a valid sale, even though it was held in execution of a decree which was void. A sale is void ab initio if it is held in execution of a decree which is a nullity and consequently, to be treated as non-existent. In the present case therefore, no rights could be acquired by the purchaser Prabhu Dayal, the father of the appellant, when he purported to purchase the house in execution of the decree against Ram Lal. Ram Lal having died without leaving any heir, the property naturally passed by escheat to the Maharaja of Jaipur.That principle is clearly recognised in Hindu Law. Reference may be made to Mullas Hindu Law, 13th Edition, p. 133, para 59.
### Response:
1
### Explanation:
It appeals from the judgment of the High Court that, in that Court, no attempt was made on behalf of the appellant to contend that the decree which was obtained against Ram Lal and in execution of which the house was sold was not null and void and was not a nullity. On the face of it, the decree was passed in contravention of the provisions of O. 32, R. 15 of theCode of Civil Procedure. It has been found as a feet that Ram Lal was insane when suit No. 354 of 1939 was instituted as well as when the house was sold in execution of the decree passed in that suit.It is now a well-settled principle that, if a decree is passed against a minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable. This principle becomes applicable to the case of a lunatic in view of R. 15 of O. 32 of theCode of Civil Procedure so that the decree obtained against Ram Lal was a decree which, has to be treated as without jurisdiction and void. In these circumstances, the sale held in execution of that decree must also be held to be voidThis Court, thus, in that case, clearly recognised that, if there be no decree in existence at the time when the sale is held, the sale can be ignored and need not be set aside under the provisions of Rr. 89 to 91, C.P.C.In the present case, as we have held, the decree passed against Ram Lal was void and has to be treated as non-existent and, consequently, the sale must be held to be a nullitybut even that case, in our opinion, does not help the appellantWe are unable to read any such principle in that decision. In fact, the Privy Council, in very clear words, held that the sale was a nullity and only, at the and, took notice of the fact that, in that particular case before it, the real purchaser happened to be the judgment creditor, so that the interest of a stranger purchaser could not be defeated by him. We are not prepared to read in that judgment any decision that, if the auction-purchaser is not the judgment creditor but a stranger, the sale would be a valid sale, even though it was held in execution of a decree which was void. A sale is void ab initio if it is held in execution of a decree which is a nullity and consequently, to be treated as non-existent. In the present case therefore, no rights could be acquired by the purchaser Prabhu Dayal, the father of the appellant, when he purported to purchase the house in execution of the decree against Ram Lal. Ram Lal having died without leaving any heir, the property naturally passed by escheat to the Maharaja of Jaipur.That principle is clearly recognised in Hindu Law. Reference may be made to Mullas Hindu Law, 13th Edition, p. 133, para 59.
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UTTAR PRADESH SUBORDINATE SERVICE SELECTION COMMISSION & ANR Vs. BRIJENDRA PRATAP SINGH & ANR | the matter of selection by a body, unless a decision taken is palpably perverse, the Court should adopt a hands off approach. 10. Per contra, learned counsel for the respondent strongly contended that the respondent who belongs to the OBC category had secured 86 marks which was only one mark short of the cut off marks. He was at pains to point out that all that the High Court has directed is to rework the position by giving him one mark for question no. 46 in case the Commission did not delete question no. 46 and thereafter, if he secured sufficiently high marks that he could secure selection, then alone, he would get the benefit. More importantly, he drew support from another development, one Ankur Srivastava and another person filed Writ Petition No. 10779 of 2018. In the said case, the stand of the appellant was that it has been decided to allow one mark to the question to all candidates across the Board. He points out that perusal of the order passed in the said case reveals that the High Court dismissed the writ petition in view of the submission made by the appellant as grievance of the petitioners therein did not survive. He would further also contend before us that the Court may approach his problem bearing in mind the principle laid down by this Court in Guru Nanak Dev University v. Saumil Garg and Others (2005) 13 SCC 749 . Therein, three learned Judges while dealing with the problem of incorrect answers or rather incorrect questions/vague questions inter alia held that It is wholly unjust to give marks to a student who did not even attempt to answer those questions. He would therefore, point out that in the facts of this case, the principle is apposite and there is no rationale for the respondent to deny the mark which on all counts he is entitled to. 11. The selection started in this case in the year 2015 by issuance of the advertisement. The examination took place on 21.02.2016. Option B to the question no. 46 would have been the correct answer but for the untimely death of the minister in question just 12 days prior to the examination. In other words, as on the date when the examiner settled the question with which we are concerned, this is not a case for a question which was without the correct option. It was not a vague question at that time. Circumstances overtook both the Commission and the candidates, however, as on the date of the examination option B would be a wrong answer. None of the options could possibly be the correct answer. The Commission, therefore, sat and took a decision. It is worthwhile to notice that the respondent has not chosen to impugn the said decision in the writ petition as such. Secondly, we cannot be oblivious to the fact that by the time, the Division Bench rendered the impugned judgment which is dated 18.02.21, much water has flown under the bridge in the form of selection being taken forward and appointments being made. Therefore, direction to delete the question at this stage may not be an appropriate remedy though, we would not ordinarily have questioned the principle behind such a direction. As far as the other option which is couched as direction to the appellant is concerned which is to give a mark to the respondent, we have to necessarily sustain such a direction on the basis of the illegality of the decision taken by the appellant being successfully impugned. 12. We are of the view that the principle of judicial review which is apposite in such case is indeed that of power of the Court being supervisory in nature and the jurisdiction not being that of an appellate body. The challenge to the legality of the decision making process must be appreciated with reference to relevant well known inputs. Quite apart from the fact that the decision as such is not questioned as already noticed and even taking the decision as it is and proceeding to examine its legality, we may find it difficult to sustain the objection of the respondent on the basis that the appellant Commission has even decided to grant marks to those who have not attempted to give any answer. 13. We have already noticed the view expressed by the Bench of three learned Judges in Guru Nanak Dev University (supra). But we may not be justified in applying the said principle in the facts of this case. This is a case where as on the date when the examination took place, actually none of the answers which were given as options were correct. On the date when the questions were, in fact, set, one answer was correct (Option B). It is this rationale which apparently has weighed with the appellant Commission in deciding to award marks to those who have answered by ticking Option B. Those who did not answer any of the options, were given marks on the appellants premise that none of the answers were right. The respondent, on the other hand, represented a section of those candidates who went ahead and gave an answer which was not correct by any yardstick, at any point of time. So, it is here that the Commission drew a distinction between the categories which would not therefore, in short, be characterised as palpably arbitrary. 14. As far as the other litigation in the form of the order passed by the High Court in which the counsel for the appellant commission took the stand that one mark is made available to all candidates across the Board and the contention based thereon by the respondent is concerned, the stand of the appellant is that no candidate in the position of the respondent who has given a wrong answer (answer other than option B) has been given one mark. We record this statement. It is stated to be part of the rejoinder affidavit also. | 1[ds]11. The selection started in this case in the year 2015 by issuance of the advertisement. The examination took place on 21.02.2016. Option B to the question no. 46 would have been the correct answer but for the untimely death of the minister in question just 12 days prior to the examination. In other words, as on the date when the examiner settled the question with which we are concerned, this is not a case for a question which was without the correct option. It was not a vague question at that time. Circumstances overtook both the Commission and the candidates, however, as on the date of the examination option B would be a wrong answer. None of the options could possibly be the correct answer. The Commission, therefore, sat and took a decision. It is worthwhile to notice that the respondent has not chosen to impugn the said decision in the writ petition as such. Secondly, we cannot be oblivious to the fact that by the time, the Division Bench rendered the impugned judgment which is dated 18.02.21, much water has flown under the bridge in the form of selection being taken forward and appointments being made. Therefore, direction to delete the question at this stage may not be an appropriate remedy though, we would not ordinarily have questioned the principle behind such a direction. As far as the other option which is couched as direction to the appellant is concerned which is to give a mark to the respondent, we have to necessarily sustain such a direction on the basis of the illegality of the decision taken by the appellant being successfully impugned.12. We are of the view that the principle of judicial review which is apposite in such case is indeed that of power of the Court being supervisory in nature and the jurisdiction not being that of an appellate body. The challenge to the legality of the decision making process must be appreciated with reference to relevant well known inputs. Quite apart from the fact that the decision as such is not questioned as already noticed and even taking the decision as it is and proceeding to examine its legality, we may find it difficult to sustain the objection of the respondent on the basis that the appellant Commission has even decided to grant marks to those who have not attempted to give any answer.13. We have already noticed the view expressed by the Bench of three learned Judges in Guru Nanak Dev University (supra). But we may not be justified in applying the said principle in the facts of this case. This is a case where as on the date when the examination took place, actually none of the answers which were given as options were correct. On the date when the questions were, in fact, set, one answer was correct (Option B). It is this rationale which apparently has weighed with the appellant Commission in deciding to award marks to those who have answered by ticking Option B. Those who did not answer any of the options, were given marks on the appellants premise that none of the answers were right. The respondent, on the other hand, represented a section of those candidates who went ahead and gave an answer which was not correct by any yardstick, at any point of time. So, it is here that the Commission drew a distinction between the categories which would not therefore, in short, be characterised as palpably arbitrary.14. As far as the other litigation in the form of the order passed by the High Court in which the counsel for the appellant commission took the stand that one mark is made available to all candidates across the Board and the contention based thereon by the respondent is concerned, the stand of the appellant is that no candidate in the position of the respondent who has given a wrong answer (answer other than option B) has been given one mark. We record this statement. It is stated to be part of the rejoinder affidavit also. | 1 | 2,423 | 742 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the matter of selection by a body, unless a decision taken is palpably perverse, the Court should adopt a hands off approach. 10. Per contra, learned counsel for the respondent strongly contended that the respondent who belongs to the OBC category had secured 86 marks which was only one mark short of the cut off marks. He was at pains to point out that all that the High Court has directed is to rework the position by giving him one mark for question no. 46 in case the Commission did not delete question no. 46 and thereafter, if he secured sufficiently high marks that he could secure selection, then alone, he would get the benefit. More importantly, he drew support from another development, one Ankur Srivastava and another person filed Writ Petition No. 10779 of 2018. In the said case, the stand of the appellant was that it has been decided to allow one mark to the question to all candidates across the Board. He points out that perusal of the order passed in the said case reveals that the High Court dismissed the writ petition in view of the submission made by the appellant as grievance of the petitioners therein did not survive. He would further also contend before us that the Court may approach his problem bearing in mind the principle laid down by this Court in Guru Nanak Dev University v. Saumil Garg and Others (2005) 13 SCC 749 . Therein, three learned Judges while dealing with the problem of incorrect answers or rather incorrect questions/vague questions inter alia held that It is wholly unjust to give marks to a student who did not even attempt to answer those questions. He would therefore, point out that in the facts of this case, the principle is apposite and there is no rationale for the respondent to deny the mark which on all counts he is entitled to. 11. The selection started in this case in the year 2015 by issuance of the advertisement. The examination took place on 21.02.2016. Option B to the question no. 46 would have been the correct answer but for the untimely death of the minister in question just 12 days prior to the examination. In other words, as on the date when the examiner settled the question with which we are concerned, this is not a case for a question which was without the correct option. It was not a vague question at that time. Circumstances overtook both the Commission and the candidates, however, as on the date of the examination option B would be a wrong answer. None of the options could possibly be the correct answer. The Commission, therefore, sat and took a decision. It is worthwhile to notice that the respondent has not chosen to impugn the said decision in the writ petition as such. Secondly, we cannot be oblivious to the fact that by the time, the Division Bench rendered the impugned judgment which is dated 18.02.21, much water has flown under the bridge in the form of selection being taken forward and appointments being made. Therefore, direction to delete the question at this stage may not be an appropriate remedy though, we would not ordinarily have questioned the principle behind such a direction. As far as the other option which is couched as direction to the appellant is concerned which is to give a mark to the respondent, we have to necessarily sustain such a direction on the basis of the illegality of the decision taken by the appellant being successfully impugned. 12. We are of the view that the principle of judicial review which is apposite in such case is indeed that of power of the Court being supervisory in nature and the jurisdiction not being that of an appellate body. The challenge to the legality of the decision making process must be appreciated with reference to relevant well known inputs. Quite apart from the fact that the decision as such is not questioned as already noticed and even taking the decision as it is and proceeding to examine its legality, we may find it difficult to sustain the objection of the respondent on the basis that the appellant Commission has even decided to grant marks to those who have not attempted to give any answer. 13. We have already noticed the view expressed by the Bench of three learned Judges in Guru Nanak Dev University (supra). But we may not be justified in applying the said principle in the facts of this case. This is a case where as on the date when the examination took place, actually none of the answers which were given as options were correct. On the date when the questions were, in fact, set, one answer was correct (Option B). It is this rationale which apparently has weighed with the appellant Commission in deciding to award marks to those who have answered by ticking Option B. Those who did not answer any of the options, were given marks on the appellants premise that none of the answers were right. The respondent, on the other hand, represented a section of those candidates who went ahead and gave an answer which was not correct by any yardstick, at any point of time. So, it is here that the Commission drew a distinction between the categories which would not therefore, in short, be characterised as palpably arbitrary. 14. As far as the other litigation in the form of the order passed by the High Court in which the counsel for the appellant commission took the stand that one mark is made available to all candidates across the Board and the contention based thereon by the respondent is concerned, the stand of the appellant is that no candidate in the position of the respondent who has given a wrong answer (answer other than option B) has been given one mark. We record this statement. It is stated to be part of the rejoinder affidavit also.
### Response:
1
### Explanation:
11. The selection started in this case in the year 2015 by issuance of the advertisement. The examination took place on 21.02.2016. Option B to the question no. 46 would have been the correct answer but for the untimely death of the minister in question just 12 days prior to the examination. In other words, as on the date when the examiner settled the question with which we are concerned, this is not a case for a question which was without the correct option. It was not a vague question at that time. Circumstances overtook both the Commission and the candidates, however, as on the date of the examination option B would be a wrong answer. None of the options could possibly be the correct answer. The Commission, therefore, sat and took a decision. It is worthwhile to notice that the respondent has not chosen to impugn the said decision in the writ petition as such. Secondly, we cannot be oblivious to the fact that by the time, the Division Bench rendered the impugned judgment which is dated 18.02.21, much water has flown under the bridge in the form of selection being taken forward and appointments being made. Therefore, direction to delete the question at this stage may not be an appropriate remedy though, we would not ordinarily have questioned the principle behind such a direction. As far as the other option which is couched as direction to the appellant is concerned which is to give a mark to the respondent, we have to necessarily sustain such a direction on the basis of the illegality of the decision taken by the appellant being successfully impugned.12. We are of the view that the principle of judicial review which is apposite in such case is indeed that of power of the Court being supervisory in nature and the jurisdiction not being that of an appellate body. The challenge to the legality of the decision making process must be appreciated with reference to relevant well known inputs. Quite apart from the fact that the decision as such is not questioned as already noticed and even taking the decision as it is and proceeding to examine its legality, we may find it difficult to sustain the objection of the respondent on the basis that the appellant Commission has even decided to grant marks to those who have not attempted to give any answer.13. We have already noticed the view expressed by the Bench of three learned Judges in Guru Nanak Dev University (supra). But we may not be justified in applying the said principle in the facts of this case. This is a case where as on the date when the examination took place, actually none of the answers which were given as options were correct. On the date when the questions were, in fact, set, one answer was correct (Option B). It is this rationale which apparently has weighed with the appellant Commission in deciding to award marks to those who have answered by ticking Option B. Those who did not answer any of the options, were given marks on the appellants premise that none of the answers were right. The respondent, on the other hand, represented a section of those candidates who went ahead and gave an answer which was not correct by any yardstick, at any point of time. So, it is here that the Commission drew a distinction between the categories which would not therefore, in short, be characterised as palpably arbitrary.14. As far as the other litigation in the form of the order passed by the High Court in which the counsel for the appellant commission took the stand that one mark is made available to all candidates across the Board and the contention based thereon by the respondent is concerned, the stand of the appellant is that no candidate in the position of the respondent who has given a wrong answer (answer other than option B) has been given one mark. We record this statement. It is stated to be part of the rejoinder affidavit also.
|
Shri Shubhlaxmi Mills Ltd Vs. Union Of India & Anr | the appellant company has purchased the property does not affect the question. The real question is whether after the accession of the Cambay State to the Dominion of India, somebody having a contractual right which could be enforced against the Cambay State was entitled to enforce it against the Government of India in the Indian Courts. There is an exhaustive review of the authorities pertinent on this question in this Courts decision in Dalmia Dadri Cement Co., Ltd. v. Commr. of Income-tax, 1959 SCR 729 : (AIR 1958 SC 816 ). It is unnecessary to discuss these authorities again. We may only refer to the succinct statement of the Law by Lord Dunedin in Vajesingji Joravarsinghji v. Secy. of State for India, 51 Ind App 357 at p. 360: (AIR 1924 PC 216 at p. 217) :"When a territory is acquired by a sovereign state for the first time that is an Act of state. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognized ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had-under the rule of predecessors avail him nothing. Nay, more even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal Courts. The right to enforce remains only with the high contracting parties"On a consideration of the authorities the law was stated thus in the Dadri Cement case, 1959 SCR 729 : (AIR 1958 SC 816 ), by Venkatarama Aiyar. J. on behalf of the Court:"The result of the authorities then is that when a treaty is entered into by sovereigns of independent states "hereunder sovereignty in territories passes from one to the other; clauses therein providing for the recognition by the new sovereign of the existing rights of the residents of those territories must he regarded as invested with the character of an act of state and no claim based thereon could be enforced in a Court of law."4. The appellant company was, therefore, not entitled to have any relief from the Courts in India on the basis of the covenants in spite of the fact that the merger agreement included-by a communication from the Government of India to the Nawab, dated September 10, 1948-a clause in these terms:-"No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned unless the order was passed or action taken after the 1st April 1948, and is considered by the Government of India to be palpably unjust or unreasonable. The decision of the Government of India in this respect will be final."5. Before us a point was sought to be taken on behalf of the appellant that the Dominion of India did in fact recognize the right of the Vijaylaxmi Cotton Mills to exemption from income-tax and so the right can he enforced. It is to be noticed that in the application before the High Court no such case of recognition was set up. Paragraph 6 of the Petition to which the learned counsel drew our attention says "The petitioners say that ever since the grant of the said exemption from 1943 onwards the said Shree Vijaylaxmi Cotton Mills enjoyed the said exemption and the said cambay State carried out its obligations". It is urged that by these words the appellant wanted to say that the Government of India also gave the Vijaylaxmi Cotton Mills an exemption from taxation on the basis of the covenant. The words used in Para. 6 are, however, not capable of this interpretation. We think it proper to add that even assuming that a claim for recognition of the right to exemption on the basis of the covenant had been made, the appellant has placed no material before the Court in support of such a claim. All that the learned counsel could say in support of this claim of recognition was that for the period from August 1, 1949, when the Dominion Government became entitled to levy income-tax on the Vijaylaxmi Cotton Mills upto December 16, 1949, when the Vijaylaxmi Cotton Mills transferred its interest, to the appellant company the Dominion of India or thereafter the Union of India has in fact made no assessment. The omission to assess tax for a short period like this could, however, not possibly be considered as amounting to the recognition of a right to exemption. It. is worth remembering in this connection that in S. 15 of the Taxation Concession Order, made on December 31, 1949, it was made clear that the Government of India would allow or disallow any exemptions granted by an acceding State, only as it thought fit. It is true that recognition need not be in any particular form. It was pointed by this Court in Virendra Singh v. State of Uttar Pradesh, (1955) 1 SCR 415 : (AIR 1954 SCR 447), that recognition of such rights as they exist at the date of cession "can be given either by legislation or by proclamation and it can even be inferred from the mode of dealing".... This is of little assistance to the appellant, which relies wholly on the fact of non-assessment of the Vijaylaxmi Cotton Mills for the period from August 1, 1949 to December 16, 1949, and not on anything else. It is apparently in view of this state of things that no case of recognition by the Dominion of India or the Union of India of the right to exemption was made in the petition before the High Court. In our opinion the High Court rightly dismissed the petition. | 0[ds]It is to be noticed that in the application before the High Court no such case of recognition was setwords used in Para. 6 are, however, not capable of this interpretation. We think it proper to add that even assuming that a claim for recognition of the right to exemption on the basis of the covenant had been made, the appellant has placed no material before the Court in support of such aomission to assess tax for a short period like this could, however, not possibly be considered as amounting to the recognition of a right to exemption. It. is worth remembering in this connection that in S. 15 of the Taxation Concession Order, made on December 31, 1949, it was made clear that the Government of India would allow or disallow any exemptions granted by an acceding State, only as it thought fit. It is true that recognition need not be in any particular form. It was pointed by this Court in Virendra Singh v. State of Uttar Pradesh, (1955) 1 SCR 415 : (AIR 1954 SCR 447), that recognition of such rights as they exist at the date of cession "can be given either by legislation or by proclamation and it can even be inferred from the mode of dealing".... This is of little assistance to the appellant, which relies wholly on the fact of non-assessment of the Vijaylaxmi Cotton Mills for the period from August 1, 1949 to December 16, 1949, and not on anything else. It is apparently in view of this state of things that no case of recognition by the Dominion of India or the Union of India of the right to exemption was made in the petition before the High Court. In our opinion the High Court rightly dismissed the petition. | 0 | 1,862 | 333 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the appellant company has purchased the property does not affect the question. The real question is whether after the accession of the Cambay State to the Dominion of India, somebody having a contractual right which could be enforced against the Cambay State was entitled to enforce it against the Government of India in the Indian Courts. There is an exhaustive review of the authorities pertinent on this question in this Courts decision in Dalmia Dadri Cement Co., Ltd. v. Commr. of Income-tax, 1959 SCR 729 : (AIR 1958 SC 816 ). It is unnecessary to discuss these authorities again. We may only refer to the succinct statement of the Law by Lord Dunedin in Vajesingji Joravarsinghji v. Secy. of State for India, 51 Ind App 357 at p. 360: (AIR 1924 PC 216 at p. 217) :"When a territory is acquired by a sovereign state for the first time that is an Act of state. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognized ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had-under the rule of predecessors avail him nothing. Nay, more even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal Courts. The right to enforce remains only with the high contracting parties"On a consideration of the authorities the law was stated thus in the Dadri Cement case, 1959 SCR 729 : (AIR 1958 SC 816 ), by Venkatarama Aiyar. J. on behalf of the Court:"The result of the authorities then is that when a treaty is entered into by sovereigns of independent states "hereunder sovereignty in territories passes from one to the other; clauses therein providing for the recognition by the new sovereign of the existing rights of the residents of those territories must he regarded as invested with the character of an act of state and no claim based thereon could be enforced in a Court of law."4. The appellant company was, therefore, not entitled to have any relief from the Courts in India on the basis of the covenants in spite of the fact that the merger agreement included-by a communication from the Government of India to the Nawab, dated September 10, 1948-a clause in these terms:-"No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned unless the order was passed or action taken after the 1st April 1948, and is considered by the Government of India to be palpably unjust or unreasonable. The decision of the Government of India in this respect will be final."5. Before us a point was sought to be taken on behalf of the appellant that the Dominion of India did in fact recognize the right of the Vijaylaxmi Cotton Mills to exemption from income-tax and so the right can he enforced. It is to be noticed that in the application before the High Court no such case of recognition was set up. Paragraph 6 of the Petition to which the learned counsel drew our attention says "The petitioners say that ever since the grant of the said exemption from 1943 onwards the said Shree Vijaylaxmi Cotton Mills enjoyed the said exemption and the said cambay State carried out its obligations". It is urged that by these words the appellant wanted to say that the Government of India also gave the Vijaylaxmi Cotton Mills an exemption from taxation on the basis of the covenant. The words used in Para. 6 are, however, not capable of this interpretation. We think it proper to add that even assuming that a claim for recognition of the right to exemption on the basis of the covenant had been made, the appellant has placed no material before the Court in support of such a claim. All that the learned counsel could say in support of this claim of recognition was that for the period from August 1, 1949, when the Dominion Government became entitled to levy income-tax on the Vijaylaxmi Cotton Mills upto December 16, 1949, when the Vijaylaxmi Cotton Mills transferred its interest, to the appellant company the Dominion of India or thereafter the Union of India has in fact made no assessment. The omission to assess tax for a short period like this could, however, not possibly be considered as amounting to the recognition of a right to exemption. It. is worth remembering in this connection that in S. 15 of the Taxation Concession Order, made on December 31, 1949, it was made clear that the Government of India would allow or disallow any exemptions granted by an acceding State, only as it thought fit. It is true that recognition need not be in any particular form. It was pointed by this Court in Virendra Singh v. State of Uttar Pradesh, (1955) 1 SCR 415 : (AIR 1954 SCR 447), that recognition of such rights as they exist at the date of cession "can be given either by legislation or by proclamation and it can even be inferred from the mode of dealing".... This is of little assistance to the appellant, which relies wholly on the fact of non-assessment of the Vijaylaxmi Cotton Mills for the period from August 1, 1949 to December 16, 1949, and not on anything else. It is apparently in view of this state of things that no case of recognition by the Dominion of India or the Union of India of the right to exemption was made in the petition before the High Court. In our opinion the High Court rightly dismissed the petition.
### Response:
0
### Explanation:
It is to be noticed that in the application before the High Court no such case of recognition was setwords used in Para. 6 are, however, not capable of this interpretation. We think it proper to add that even assuming that a claim for recognition of the right to exemption on the basis of the covenant had been made, the appellant has placed no material before the Court in support of such aomission to assess tax for a short period like this could, however, not possibly be considered as amounting to the recognition of a right to exemption. It. is worth remembering in this connection that in S. 15 of the Taxation Concession Order, made on December 31, 1949, it was made clear that the Government of India would allow or disallow any exemptions granted by an acceding State, only as it thought fit. It is true that recognition need not be in any particular form. It was pointed by this Court in Virendra Singh v. State of Uttar Pradesh, (1955) 1 SCR 415 : (AIR 1954 SCR 447), that recognition of such rights as they exist at the date of cession "can be given either by legislation or by proclamation and it can even be inferred from the mode of dealing".... This is of little assistance to the appellant, which relies wholly on the fact of non-assessment of the Vijaylaxmi Cotton Mills for the period from August 1, 1949 to December 16, 1949, and not on anything else. It is apparently in view of this state of things that no case of recognition by the Dominion of India or the Union of India of the right to exemption was made in the petition before the High Court. In our opinion the High Court rightly dismissed the petition.
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T.P. MURUGAN(DEAD) THROUGH LRS Vs. BOJAN | and sentenced him to undergo R.I. for six months and Fine of Rs.5000/-, failing which, he shall undergo one months R.I. 4. Aggrieved by the said judgment, the respondent-accused filed Criminal Appeal Nos. 437-438 of 2006 before the District and Sessions Judge, Fast Track Court No. III, Coimbatore. The District and Sessions Judge held that the presumption under Sections 118 and 139 of the N.I. Act was not rebutted by the respondent. It was proved by the complainants that there were insufficient funds in the bank account of the respondent at the time of issuance of the cheques. The respondent had with mala fide intention issued "Stop Payment" instructions. The respondent failed to give any explanation as to how the Pronote came into possession of the appellant. Furthermore, the Sessions Court discarded the evidence adduced by the accused, of DW.2 Mahesh, as being an interested witness, who had falsely stated that he was an employee of N.R.R. Finances. This was rebutted by two witnesses viz. PW.2 and PW.4, who were Directors of N.R.R. Finances who deposed that DW.2 was never employed by this Company. The District and Sessions Court affirmed the conviction and sentence awarded by the Trial Court. 5. Aggrieved by the judgment and order dated 26.11.2008 passed by the District and Sessions Judge, Fast Track Court No. III, Coimbatore, the respondent-accused filed two Criminal Revision Nos. 1657-1658 of 2008 before the Madras High Court. That even though the appellants herein- complainants had initially participated in the proceedings, the present appellant was unrepresented during the final hearing. The hearing of the Criminal Revision Petitions proceeded ex parte. The High Court recorded that the respondent-accused had not denied either the issuance of the cheques, or his signatures on the Pronote and cheques. The denial was only with regard to the circumstances, the manner and the period during which the cheques were issued. The High Court took the view that the burden cast on the respondent-accused was only to raise a doubt in the mind of the Court about the nature of the transaction. The Ld. Single Judge accepted the contention of the respondent that since the cheques and the Pronote were issued on the same date, it could only be treated as a security, and was not towards any debt or liability. By raising a doubt with respect to the circumstances in which the Pronote and cheques were issued, the respondent had discharged the presumption under S. 139 of the N.I. Act. The High Court held that the Trial Court and the Sessions Court erred in applying the legal principles of standard of proof for the complainant to prove their case. The High Court, while exercising its revisional jurisdiction, reversed the concurrent findings of the Courts below, and set aside the judgment of conviction and sentence passed against the accused. 6. Aggrieved by the judgment and order dated 27.09.2013 passed in Criminal Revision Nos. 1657-1658 of 2008, the appellant-complainants filed the present Special Leave Petitions. Mrs. V. Mohana, Sr. Adv. represented the appellants, and submitted that the respondentaccused has admitted his signatures on the two dishonoured cheques and on the Pronote. The appellants-complainants had adduced sufficient evidence to prove their case. Reliance was placed by the Senior Counsel on the decisions of this Court in Rangappa vs. Shrimohan [(2010) 11 SCC 441] , K.N. Beena vs. Muniyappan and Anr. [(2001)8 SCC 458] ; and T. Vasanthakumar vs. Vijayakumari [(2015)8 SCC 378] in support of her case. 7. Mr. R. Basanth, Sr. Counsel appeared on behalf of the respondent-accused, and contended inter alia that the cheques were not issued towards discharge of a legally enforceable debt, but as a security, and that the judgment under challenge required no interference. 8. We have heard Senior Counsel for both parties, and perused the record. Under Section 139 of the N.I. Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability1. This presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan. In the present case, the respondent has failed to produce any credible evidence to rebut the statutory presumption. This would be evident from the following circumstances:- (i) The respondent-accused issued a Pronote for the amount covered by the cheques, which clearly states that it was being issued for a loan; (ii) The defence of the respondent that he had allegedly issued 10 blank cheques in 1995 for repayment of a loan, has been disbelieved both by the Trial Court and Sessions Court, on the ground that the respondent did not ask for return of the cheques for a period of seven years from 1995. This defence was obviously a cover-up, and lacked credibility, and hence was rightly discarded. (iii) The letter dated 09.11.2002 was addressed by the respondent after he had issued two 1 Refer to K.N. Beena Vs. Muniyappan and Another[(2001) 8 SCC 458 ; para 6] and Rangappa vs. Shrimohan [(2010) 11 SCC 441 ; para 26] 9 cheques on 07.08.2002 for Rs.37,00,000/- and Rs.14,00,000/- knowing fully well that he did not have sufficient funds in his account. The letter dated 09.11.2002 was an after-thought, and was written to evade liability. This defence also lacked credibility, as the appellants had never asked for return of the alleged cheques for seven years. (iv) The defence of the respondent that the Pronote dated 07.08.2002 signed by him, was allegedly filled by one Mahesh-DW.2, an employee of N.R.R. Finances, was rejected as being false. DW.2 himself admitted in his cross-examination, that he did not file any document to prove that he was employed in N.R.R. Finances. On the contrary, the appellants - complainants produced PW.2 and PW.4, Directors of N.R.R. Finances Investment Pvt. Ltd., and PW.3, a Member of N.R.R. Chit funds, who deposed that DW.2 was never employed in N.R.R. Finances. | 0[ds]We have heard Senior Counsel for both parties, and perused the record. Under Section 139 of the N.I. Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability. This presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for athe present case, the respondent has failed to produce any credible evidence to rebut the statutory presumption. This would be evident from the followinged issued a Pronote for the amount covered by the cheques, which clearly states that it was being issued for aThe defence of the respondent that he had allegedly issued 10 blank cheques in 1995 for repayment of a loan, has been disbelieved both by the Trial Court and Sessions Court, on the ground that the respondent did not ask for return of the cheques for a period of seven years from 1995. This defence was obviously aand lacked credibility, and hence was rightlyThe letter dated 09.11.2002 was addressed by the respondent after he had issued twocheques on 07.08.2002 for Rs.37,00,000/ng fully well that he did not have sufficient funds in his account. The letter dated 09.11.2002 was anand was written to evade liability. This defence also lacked credibility, as the appellants had never asked for return of the alleged cheques for sevenThe defence of the respondent that the Pronote dated 07.08.2002 signed by him, was allegedly filled by onean employee of N.R.R. Finances, was rejected as being false. DW.2 himself admitted in histhat he did not file any document to prove that he was employed in N.R.R. Finances. On the contrary, the appellantscomplainants produced PW.2 and PW.4, Directors of N.R.R. Finances Investment Pvt. Ltd., and PW.3, a Member of N.R.R. Chit funds, who deposed that DW.2 was never employed in N.R.R. Finances. | 0 | 1,841 | 361 | ### 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:
and sentenced him to undergo R.I. for six months and Fine of Rs.5000/-, failing which, he shall undergo one months R.I. 4. Aggrieved by the said judgment, the respondent-accused filed Criminal Appeal Nos. 437-438 of 2006 before the District and Sessions Judge, Fast Track Court No. III, Coimbatore. The District and Sessions Judge held that the presumption under Sections 118 and 139 of the N.I. Act was not rebutted by the respondent. It was proved by the complainants that there were insufficient funds in the bank account of the respondent at the time of issuance of the cheques. The respondent had with mala fide intention issued "Stop Payment" instructions. The respondent failed to give any explanation as to how the Pronote came into possession of the appellant. Furthermore, the Sessions Court discarded the evidence adduced by the accused, of DW.2 Mahesh, as being an interested witness, who had falsely stated that he was an employee of N.R.R. Finances. This was rebutted by two witnesses viz. PW.2 and PW.4, who were Directors of N.R.R. Finances who deposed that DW.2 was never employed by this Company. The District and Sessions Court affirmed the conviction and sentence awarded by the Trial Court. 5. Aggrieved by the judgment and order dated 26.11.2008 passed by the District and Sessions Judge, Fast Track Court No. III, Coimbatore, the respondent-accused filed two Criminal Revision Nos. 1657-1658 of 2008 before the Madras High Court. That even though the appellants herein- complainants had initially participated in the proceedings, the present appellant was unrepresented during the final hearing. The hearing of the Criminal Revision Petitions proceeded ex parte. The High Court recorded that the respondent-accused had not denied either the issuance of the cheques, or his signatures on the Pronote and cheques. The denial was only with regard to the circumstances, the manner and the period during which the cheques were issued. The High Court took the view that the burden cast on the respondent-accused was only to raise a doubt in the mind of the Court about the nature of the transaction. The Ld. Single Judge accepted the contention of the respondent that since the cheques and the Pronote were issued on the same date, it could only be treated as a security, and was not towards any debt or liability. By raising a doubt with respect to the circumstances in which the Pronote and cheques were issued, the respondent had discharged the presumption under S. 139 of the N.I. Act. The High Court held that the Trial Court and the Sessions Court erred in applying the legal principles of standard of proof for the complainant to prove their case. The High Court, while exercising its revisional jurisdiction, reversed the concurrent findings of the Courts below, and set aside the judgment of conviction and sentence passed against the accused. 6. Aggrieved by the judgment and order dated 27.09.2013 passed in Criminal Revision Nos. 1657-1658 of 2008, the appellant-complainants filed the present Special Leave Petitions. Mrs. V. Mohana, Sr. Adv. represented the appellants, and submitted that the respondentaccused has admitted his signatures on the two dishonoured cheques and on the Pronote. The appellants-complainants had adduced sufficient evidence to prove their case. Reliance was placed by the Senior Counsel on the decisions of this Court in Rangappa vs. Shrimohan [(2010) 11 SCC 441] , K.N. Beena vs. Muniyappan and Anr. [(2001)8 SCC 458] ; and T. Vasanthakumar vs. Vijayakumari [(2015)8 SCC 378] in support of her case. 7. Mr. R. Basanth, Sr. Counsel appeared on behalf of the respondent-accused, and contended inter alia that the cheques were not issued towards discharge of a legally enforceable debt, but as a security, and that the judgment under challenge required no interference. 8. We have heard Senior Counsel for both parties, and perused the record. Under Section 139 of the N.I. Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability1. This presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan. In the present case, the respondent has failed to produce any credible evidence to rebut the statutory presumption. This would be evident from the following circumstances:- (i) The respondent-accused issued a Pronote for the amount covered by the cheques, which clearly states that it was being issued for a loan; (ii) The defence of the respondent that he had allegedly issued 10 blank cheques in 1995 for repayment of a loan, has been disbelieved both by the Trial Court and Sessions Court, on the ground that the respondent did not ask for return of the cheques for a period of seven years from 1995. This defence was obviously a cover-up, and lacked credibility, and hence was rightly discarded. (iii) The letter dated 09.11.2002 was addressed by the respondent after he had issued two 1 Refer to K.N. Beena Vs. Muniyappan and Another[(2001) 8 SCC 458 ; para 6] and Rangappa vs. Shrimohan [(2010) 11 SCC 441 ; para 26] 9 cheques on 07.08.2002 for Rs.37,00,000/- and Rs.14,00,000/- knowing fully well that he did not have sufficient funds in his account. The letter dated 09.11.2002 was an after-thought, and was written to evade liability. This defence also lacked credibility, as the appellants had never asked for return of the alleged cheques for seven years. (iv) The defence of the respondent that the Pronote dated 07.08.2002 signed by him, was allegedly filled by one Mahesh-DW.2, an employee of N.R.R. Finances, was rejected as being false. DW.2 himself admitted in his cross-examination, that he did not file any document to prove that he was employed in N.R.R. Finances. On the contrary, the appellants - complainants produced PW.2 and PW.4, Directors of N.R.R. Finances Investment Pvt. Ltd., and PW.3, a Member of N.R.R. Chit funds, who deposed that DW.2 was never employed in N.R.R. Finances.
### Response:
0
### Explanation:
We have heard Senior Counsel for both parties, and perused the record. Under Section 139 of the N.I. Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability. This presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for athe present case, the respondent has failed to produce any credible evidence to rebut the statutory presumption. This would be evident from the followinged issued a Pronote for the amount covered by the cheques, which clearly states that it was being issued for aThe defence of the respondent that he had allegedly issued 10 blank cheques in 1995 for repayment of a loan, has been disbelieved both by the Trial Court and Sessions Court, on the ground that the respondent did not ask for return of the cheques for a period of seven years from 1995. This defence was obviously aand lacked credibility, and hence was rightlyThe letter dated 09.11.2002 was addressed by the respondent after he had issued twocheques on 07.08.2002 for Rs.37,00,000/ng fully well that he did not have sufficient funds in his account. The letter dated 09.11.2002 was anand was written to evade liability. This defence also lacked credibility, as the appellants had never asked for return of the alleged cheques for sevenThe defence of the respondent that the Pronote dated 07.08.2002 signed by him, was allegedly filled by onean employee of N.R.R. Finances, was rejected as being false. DW.2 himself admitted in histhat he did not file any document to prove that he was employed in N.R.R. Finances. On the contrary, the appellantscomplainants produced PW.2 and PW.4, Directors of N.R.R. Finances Investment Pvt. Ltd., and PW.3, a Member of N.R.R. Chit funds, who deposed that DW.2 was never employed in N.R.R. Finances.
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Firm A.T.B. Mehtab Majid & Co Vs. State of Madras & Another | produced in the State.17. Sub-rule (1) of the rule deals with the sale of raw hides and skins. The tax is levied from the dealer who is the last purchaser in the State. Its vires is not challenged. Clause (i) of sub-R. (2) provides for the levying of tax on the sale of hides and skins which had been tanned outside the State. The tax is levied form the dealer who, in the State, is the first seller of such hides or skins. The result is that a dealer in hides or skins which have been tanned outside the State has to pay the tax on the amount for which such hides or skins are sold by him. Clause (ii) of this sub-rule is in identical terms with respect to the sale of tanned hides or skins which have been tanned within the State. The tax is to be levied from the person who is the first dealer in such hides or skins and is levied on the amount for which they are sold. The discrimination, it is argued, comes in on account of the proviso to this sub-cl.(ii).The proviso is to the effect that if the dealer of hides or skins which had been tanned within the State proves that tax had already been levied on those hides or skins in their raw condition, in accordance with sub-R. (1), he will not be liable to the tax under sub-cl. (ii) of sub-R. (2). the result therefore is that the sale of hides or skins which had been purchased in the State and then tanned within the State is not subject to any further tax. Hides and skins tanned within the State are mostly those which had been purchased in their raw condition in the State and therefore on which tax had already been levied on the price paid by the purchaser at the time of their sale in the raw condition. If the quantum of tax had been the same, there might have been no case for grievance by the dealer of the tanned hides and skins which had been tanned outside the State. The grievance arises on account of the amount of tax levied being different on account of the existence of a substantial disparity in the price of the raw hides or skins and of those hides or skins after they had been tanned, though the rate is the same under S.3 (1) (b) of the Act. If the dealer has purchased the raw hide or skin in the State, he does not pay on the sale price of the tanned hides or skins; he pays on the purchase price only. If the dealer purchases raw hides or skins from outside the State and tans them within the State, he will be liable to pay sales-tax on the sale price of the tanned hides or skins. He too will have to pay more for tax even though the hides and skins are tanned within the State, merely on account of his having imported the hides and skins from outside, and having not therefore paid any tax under sub-rule (1). It is true that dealers, though few, selling hides and skins which had been tanned within the State will also have to pay similar tax if no tax had been paid previously, they having not purchased the raw hides and skins at all as they were from the carcases of animals owned by them; but this does not affect the discriminatory nature of the tax as already indicated.18. It is urged for the respondent State that to consider discrimination between the imported goods and goods produced or manufactured in the State, circumstances and situations at the taxable point must be similar and that the circumstance of hides or skins tanned within the State and on which tax had been paid earlier at the time of their purchase in the raw condition is sufficient to consider such hides or skins to be different from the hides or skins which had been tanned outside the State.We do not consider that the mere circumstance of a tax having been paid on sale of such hides or skins in their raw condition justifies their forming goods of a different kind from the tanned hides or skins which had been imported from outside. At the time of sale of those hides or skins in the tanned state, there was no difference between them as goods and the hides or skins tanned outside the State as goods. The similarity contemplated by Art. 304 (a) is in the nature of the quality and kind of the goods and not with respect to whether they were subject of a tax already or not.19.We are therefore of opinion that the provisions of R. 16 (2) discriminate against the imported hides or skins which had been purchased or tanned outside the State and that therefore they contravene the provisions of Art. 304 (a) of the Constitution.20. It has been urged for the respondent that if the impugned rule be held to be invalid, old R. 16 gets revived and that the tax assessed on the petitioner will be good. We do not agree once the old rule has been substituted by the new rule, it ceases to exist and it does not automatically get revived when the new rule is held to be invalid.21. Lastly, we may refer to the preliminary objection raised on behalf of the respondent to the maintainability of this petition, in view of the decision of this Court in Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621 . This petition does not come within that decision. This is not a case in which the tax has been levied by The Deputy Commercial Tax officer by misconstruing certain. provisions of a valid Act, but is a case where the taxing officer had no jurisdiction to assess the tax on account of the invalidity of the rule under which the tax was assessed. | 1[ds]10.It is therefore now well settled that taxing laws can be restrictions on trade, commerce and intercourse, if they hamper the flow of trade and if they are not what can be termed to be compensatory taxes or regulatory measures. Sales tax, of the kind under consideration here, cannot be said to be a measure regulating any trade or a compensatory tax levied for the use of trading facilities. Sales tax, which has the effect of discriminating between goods of one State and goods of another, may affect the free flow of trade and it will then offend against Art. 301 and will be valid only if it comes within the terms of Art. 304 (a).11. Article 304 (a) enables the Legislature of a State to make laws affecting trade, commerce and intercourse. It enables the imposition of taxes on goods from other States if similar goods in the State are subjected to similar taxes, so as not to discriminate between the goods manufactured or produced in that State and the goods which are imported from other States. This means that if the effect of the sales-tax on tanned hides or skins imported from, outside is that the latter becomes subject to a higher tax by the application of the proviso to sub-r. (2) of R. 16 of the Rules, then the tax is discriminatory and unconstitutional and must be struck down.12. We do not agree with the contentions for the respondents. The contention that Art. 304 (a) is attracted only when the impost is at the holder, i.e., when the goods enter the State on crossing the border of the State, is not sound. Art. 304 (a) allows the Legislature of a State to impose taxes on goods imported from other States and does not support the contention that the imposition must be at the point of entry only.13. Section 5 (vi) provides that the sale of hides or skins, whether tanned or untanned, shall be liable to tax under S. 3 (1) only at such single point in the series of sales by successive dealers as may be prescribed. Prescribed means prescribed by rules made under the Act. Rule 16 prescribes such single point. This rule was made by the Governor in the exercise of power conferred on him under S. 19 of the Act and would therefore have statutory force, in fact sub-s. (5) of S. (i) provides that the rules shall have effect as if enacted in the Act. We therefore do not agree that R. 16 is not a law which would fall within a law made by the State Legislature.14. It is true that the impugned rule, by itself, does not impose the tax, but fixes the single point at which the tax imposed by Ss. 3 and 5 is to be levied. What the rule provides is a step necessary for the imposition of the tax, and in view of Ss. 3 and 5 therefore the impugned rule is a part of the enactment which imposes the tax.15. The fact that the impugned rule was made in order to prescribe the single point in the series of sales by successive dealers at which the tax on sale of hides or skins was to be levied, in view of Ss. 3 and 5 of the Act, does not justify the making of such a rule which discriminates between the tax imposed on goods imported from outside the State and the goods produced or manufactured in thedo not consider that the mere circumstance of a tax having been paid on sale of such hides or skins in their raw condition justifies their forming goods of a different kind from the tanned hides or skins which had been imported from outside. At the time of sale of those hides or skins in the tanned state, there was no difference between them as goods and the hides or skins tanned outside the State as goods. The similarity contemplated by Art. 304 (a) is in the nature of the quality and kind of the goods and not with respect to whether they were subject of a tax already orare therefore of opinion that the provisions of R. 16 (2) discriminate against the imported hides or skins which had been purchased or tanned outside the State and that therefore they contravene the provisions of Art. 304 (a) of thedo not agree once the old rule has been substituted by the new rule, it ceases to exist and it does not automatically get revived when the new rule is held to be invalid.21. Lastly, we may refer to the preliminary objection raised on behalf of the respondent to the maintainability of this petition, in view of the decision of this Court in Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621 . This petition does not come within that decision. This is not a case in which the tax has been levied by The Deputy Commercial Tax officer by misconstruing certain. provisions of a valid Act, but is a case where the taxing officer had no jurisdiction to assess the tax on account of the invalidity of the rule under which the tax was assessed. | 1 | 3,566 | 956 | ### 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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produced in the State.17. Sub-rule (1) of the rule deals with the sale of raw hides and skins. The tax is levied from the dealer who is the last purchaser in the State. Its vires is not challenged. Clause (i) of sub-R. (2) provides for the levying of tax on the sale of hides and skins which had been tanned outside the State. The tax is levied form the dealer who, in the State, is the first seller of such hides or skins. The result is that a dealer in hides or skins which have been tanned outside the State has to pay the tax on the amount for which such hides or skins are sold by him. Clause (ii) of this sub-rule is in identical terms with respect to the sale of tanned hides or skins which have been tanned within the State. The tax is to be levied from the person who is the first dealer in such hides or skins and is levied on the amount for which they are sold. The discrimination, it is argued, comes in on account of the proviso to this sub-cl.(ii).The proviso is to the effect that if the dealer of hides or skins which had been tanned within the State proves that tax had already been levied on those hides or skins in their raw condition, in accordance with sub-R. (1), he will not be liable to the tax under sub-cl. (ii) of sub-R. (2). the result therefore is that the sale of hides or skins which had been purchased in the State and then tanned within the State is not subject to any further tax. Hides and skins tanned within the State are mostly those which had been purchased in their raw condition in the State and therefore on which tax had already been levied on the price paid by the purchaser at the time of their sale in the raw condition. If the quantum of tax had been the same, there might have been no case for grievance by the dealer of the tanned hides and skins which had been tanned outside the State. The grievance arises on account of the amount of tax levied being different on account of the existence of a substantial disparity in the price of the raw hides or skins and of those hides or skins after they had been tanned, though the rate is the same under S.3 (1) (b) of the Act. If the dealer has purchased the raw hide or skin in the State, he does not pay on the sale price of the tanned hides or skins; he pays on the purchase price only. If the dealer purchases raw hides or skins from outside the State and tans them within the State, he will be liable to pay sales-tax on the sale price of the tanned hides or skins. He too will have to pay more for tax even though the hides and skins are tanned within the State, merely on account of his having imported the hides and skins from outside, and having not therefore paid any tax under sub-rule (1). It is true that dealers, though few, selling hides and skins which had been tanned within the State will also have to pay similar tax if no tax had been paid previously, they having not purchased the raw hides and skins at all as they were from the carcases of animals owned by them; but this does not affect the discriminatory nature of the tax as already indicated.18. It is urged for the respondent State that to consider discrimination between the imported goods and goods produced or manufactured in the State, circumstances and situations at the taxable point must be similar and that the circumstance of hides or skins tanned within the State and on which tax had been paid earlier at the time of their purchase in the raw condition is sufficient to consider such hides or skins to be different from the hides or skins which had been tanned outside the State.We do not consider that the mere circumstance of a tax having been paid on sale of such hides or skins in their raw condition justifies their forming goods of a different kind from the tanned hides or skins which had been imported from outside. At the time of sale of those hides or skins in the tanned state, there was no difference between them as goods and the hides or skins tanned outside the State as goods. The similarity contemplated by Art. 304 (a) is in the nature of the quality and kind of the goods and not with respect to whether they were subject of a tax already or not.19.We are therefore of opinion that the provisions of R. 16 (2) discriminate against the imported hides or skins which had been purchased or tanned outside the State and that therefore they contravene the provisions of Art. 304 (a) of the Constitution.20. It has been urged for the respondent that if the impugned rule be held to be invalid, old R. 16 gets revived and that the tax assessed on the petitioner will be good. We do not agree once the old rule has been substituted by the new rule, it ceases to exist and it does not automatically get revived when the new rule is held to be invalid.21. Lastly, we may refer to the preliminary objection raised on behalf of the respondent to the maintainability of this petition, in view of the decision of this Court in Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621 . This petition does not come within that decision. This is not a case in which the tax has been levied by The Deputy Commercial Tax officer by misconstruing certain. provisions of a valid Act, but is a case where the taxing officer had no jurisdiction to assess the tax on account of the invalidity of the rule under which the tax was assessed.
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10.It is therefore now well settled that taxing laws can be restrictions on trade, commerce and intercourse, if they hamper the flow of trade and if they are not what can be termed to be compensatory taxes or regulatory measures. Sales tax, of the kind under consideration here, cannot be said to be a measure regulating any trade or a compensatory tax levied for the use of trading facilities. Sales tax, which has the effect of discriminating between goods of one State and goods of another, may affect the free flow of trade and it will then offend against Art. 301 and will be valid only if it comes within the terms of Art. 304 (a).11. Article 304 (a) enables the Legislature of a State to make laws affecting trade, commerce and intercourse. It enables the imposition of taxes on goods from other States if similar goods in the State are subjected to similar taxes, so as not to discriminate between the goods manufactured or produced in that State and the goods which are imported from other States. This means that if the effect of the sales-tax on tanned hides or skins imported from, outside is that the latter becomes subject to a higher tax by the application of the proviso to sub-r. (2) of R. 16 of the Rules, then the tax is discriminatory and unconstitutional and must be struck down.12. We do not agree with the contentions for the respondents. The contention that Art. 304 (a) is attracted only when the impost is at the holder, i.e., when the goods enter the State on crossing the border of the State, is not sound. Art. 304 (a) allows the Legislature of a State to impose taxes on goods imported from other States and does not support the contention that the imposition must be at the point of entry only.13. Section 5 (vi) provides that the sale of hides or skins, whether tanned or untanned, shall be liable to tax under S. 3 (1) only at such single point in the series of sales by successive dealers as may be prescribed. Prescribed means prescribed by rules made under the Act. Rule 16 prescribes such single point. This rule was made by the Governor in the exercise of power conferred on him under S. 19 of the Act and would therefore have statutory force, in fact sub-s. (5) of S. (i) provides that the rules shall have effect as if enacted in the Act. We therefore do not agree that R. 16 is not a law which would fall within a law made by the State Legislature.14. It is true that the impugned rule, by itself, does not impose the tax, but fixes the single point at which the tax imposed by Ss. 3 and 5 is to be levied. What the rule provides is a step necessary for the imposition of the tax, and in view of Ss. 3 and 5 therefore the impugned rule is a part of the enactment which imposes the tax.15. The fact that the impugned rule was made in order to prescribe the single point in the series of sales by successive dealers at which the tax on sale of hides or skins was to be levied, in view of Ss. 3 and 5 of the Act, does not justify the making of such a rule which discriminates between the tax imposed on goods imported from outside the State and the goods produced or manufactured in thedo not consider that the mere circumstance of a tax having been paid on sale of such hides or skins in their raw condition justifies their forming goods of a different kind from the tanned hides or skins which had been imported from outside. At the time of sale of those hides or skins in the tanned state, there was no difference between them as goods and the hides or skins tanned outside the State as goods. The similarity contemplated by Art. 304 (a) is in the nature of the quality and kind of the goods and not with respect to whether they were subject of a tax already orare therefore of opinion that the provisions of R. 16 (2) discriminate against the imported hides or skins which had been purchased or tanned outside the State and that therefore they contravene the provisions of Art. 304 (a) of thedo not agree once the old rule has been substituted by the new rule, it ceases to exist and it does not automatically get revived when the new rule is held to be invalid.21. Lastly, we may refer to the preliminary objection raised on behalf of the respondent to the maintainability of this petition, in view of the decision of this Court in Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621 . This petition does not come within that decision. This is not a case in which the tax has been levied by The Deputy Commercial Tax officer by misconstruing certain. provisions of a valid Act, but is a case where the taxing officer had no jurisdiction to assess the tax on account of the invalidity of the rule under which the tax was assessed.
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Commissioner of Income Tax (Central), Calcutta Vs. Birla Brothers Private Limited | on the cash basis, of such sum, in respect of bad and doubtful debts, due to the assessee in respect of that part of his business, profession or vocation, and in the case of an assessee carrying on a banking or money-lending business, of such sum in respect of loan made in the ordinary course of such business as the Income-tax Officer may estimate to be irrecoverable but not exceeding the amount actually written off as irrecoverable in the book of the assessee.Now bad debt means a debt which would have gone into the balance sheet as a trading debt in the business or trade. It must arise in the course of and as a result of the assessees business. The deduction claimed should not be too remote from the business carried on by the assessee.In Madan Gopal Bagla v. Commr. of I. T. W. B., 30 ITR 174 = (AIR 1956 SC 571 ) the principle which was accepted was that the debt in order to fall within Section 10(2)(xi) must be one which can properly be called a trading debt i. e. a debt of the trade, the profits of which are being computed. It was observed that the assessee in that case was not a person carrying on business of standing surety for other persons nor was he a money-lender. He was simply a timber merchant. There was some evidence that he had from time to time obtained finances for his business by procuring loans on the joint security of himself and some other person. But it was not established that he was in the habit of standing surety for other persons along with them for the purpose of securing loans for their use and benefit. Even if such had been the case any loss suffered by reasons of having to pay a debt borrowed for the benefit of another would have been a capital loss to him and not a business loss at all. A businessman may have to stand surety for some one in order to get monies for his own business. There may be a custom of the business by which that may be the only method whereby he could get money for the purpose of his own business. If he is to discharge a surety debt and if any such custom is established it would be a business debt. If the assessee has made a payment not voluntarily but to discharge a legal obligation which arises from his business he would be entitled to have the amount deducted as a bad debt under Section 10(2)(xi); see Commr. of I. T. Bombay v. Abdullabhai Abdulkadar, (1957) 31 ITR 72 (Bom) . In Essen Private Ltd. v. Commr. of I. T. Madras, (1967) 65 ITR 65 (SC) the appellant carried on business as a managing agent of several concerns. Pursuant to the agreement with one of the companies managed by it it advanced large sums of money to the managed company and also guaranteed a loan of Rs. 12 lakhs obtained by that company from a Bank. The managed company failed in its business and upon the bank pressing for payment the appellant in accordance with its guarantee made certain payments to that bank. The assessee had ultimately to write off certain sums in its books as bad debts and it claimed that allowance under Section 10(2)(xi). The Tribunal found that the advances to the managed company and the agreement guaranteeing the loan to the managed company were in pursuance of its objects and were made in the course of its business and the claim was allowed. That decision was finally affirmed by this court. In this case there was a clause in the memorandum of association by which the assessee was entitled to lend monies and to guarantee the performance of contracts. Similarly the managing agency agreement contained a clause about lending and advancing of money to the managed company. It was found by the appellate tribunal that it was a part of the managing agency to provide funds to the managed company.In the present case none of those facts has been found. Neither the memorandum of association nor the managing agency agreement contained any such provision by which it could be said that the guaranteeing of the loan made by the Bank to the selling agents was done in the course of the managing agency business.6. In our judgment the facts relied upon by the appellate tribunal and the High Court are barely sufficient for bringing the allowance claimed under Section 10(2)(xi). It may be mentioned that the case of the assessee was confined to that provision and no reliance was placed on any other provision under which such an allowance could be claimed.There was no privity of contract or any legal relationship between the assessee and the selling agent. Neither under custom nor under any statutory provision or any contractual obligation was the assessee bound to guarantee the loan advanced by the Bank to the selling agent. It is difficult how it was in the interest of the assessees business that the guarantee was given.There was even no material to establish that the managed company was under any legal obligation to finance the selling agent or to guarantee any loans advanced to the selling agent by a third party. It is incomprehensible in what manner the guaranteeing of the loan advanced to the selling agent indirectly facilitated the carrying on of the assessees business. It is equally difficult to appreciate the observations of the High Court that it was in the larger interest of the assessees business that the guarantee was given. In our opinion the view of the appellate tribunal was based on a complete misapprehension of the true legal position. The High Court also fell into the same error. The allowance which was claimed did not allwithin Section 10(2)(xi). No attempt was made nor indeed it could be usefully made to claim any allowance under Section 10(2)(xv) of the Act. | 1[ds]6. In our judgment the facts relied upon by the appellate tribunal and the High Court are barely sufficient for bringing the allowance claimed under Section 10(2)(xi). It may be mentioned that the case of the assessee was confined to that provision and no reliance was placed on any other provision under which such an allowance could be claimed.There was no privity of contract or any legal relationship between the assessee and the selling agent. Neither under custom nor under any statutory provision or any contractual obligation was the assessee bound to guarantee the loan advanced by the Bank to the selling agent. It is difficult how it was in the interest of the assessees business that the guarantee was given.There was even no material to establish that the managed company was under any legal obligation to finance the selling agent or to guarantee any loans advanced to the selling agent by a third party. It is incomprehensible in what manner the guaranteeing of the loan advanced to the selling agent indirectly facilitated the carrying on of the assessees business. It is equally difficult to appreciate the observations of the High Court that it was in the larger interest of the assessees business that the guarantee was given. In our opinion the view of the appellate tribunal was based on a complete misapprehension of the true legal position. The High Court also fell into the same error. The allowance which was claimed did not allwithin Section 10(2)(xi). No attempt was made nor indeed it could be usefully made to claim any allowance under Section 10(2)(xv) of the Act. | 1 | 2,379 | 301 | ### Instruction:
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### Input:
on the cash basis, of such sum, in respect of bad and doubtful debts, due to the assessee in respect of that part of his business, profession or vocation, and in the case of an assessee carrying on a banking or money-lending business, of such sum in respect of loan made in the ordinary course of such business as the Income-tax Officer may estimate to be irrecoverable but not exceeding the amount actually written off as irrecoverable in the book of the assessee.Now bad debt means a debt which would have gone into the balance sheet as a trading debt in the business or trade. It must arise in the course of and as a result of the assessees business. The deduction claimed should not be too remote from the business carried on by the assessee.In Madan Gopal Bagla v. Commr. of I. T. W. B., 30 ITR 174 = (AIR 1956 SC 571 ) the principle which was accepted was that the debt in order to fall within Section 10(2)(xi) must be one which can properly be called a trading debt i. e. a debt of the trade, the profits of which are being computed. It was observed that the assessee in that case was not a person carrying on business of standing surety for other persons nor was he a money-lender. He was simply a timber merchant. There was some evidence that he had from time to time obtained finances for his business by procuring loans on the joint security of himself and some other person. But it was not established that he was in the habit of standing surety for other persons along with them for the purpose of securing loans for their use and benefit. Even if such had been the case any loss suffered by reasons of having to pay a debt borrowed for the benefit of another would have been a capital loss to him and not a business loss at all. A businessman may have to stand surety for some one in order to get monies for his own business. There may be a custom of the business by which that may be the only method whereby he could get money for the purpose of his own business. If he is to discharge a surety debt and if any such custom is established it would be a business debt. If the assessee has made a payment not voluntarily but to discharge a legal obligation which arises from his business he would be entitled to have the amount deducted as a bad debt under Section 10(2)(xi); see Commr. of I. T. Bombay v. Abdullabhai Abdulkadar, (1957) 31 ITR 72 (Bom) . In Essen Private Ltd. v. Commr. of I. T. Madras, (1967) 65 ITR 65 (SC) the appellant carried on business as a managing agent of several concerns. Pursuant to the agreement with one of the companies managed by it it advanced large sums of money to the managed company and also guaranteed a loan of Rs. 12 lakhs obtained by that company from a Bank. The managed company failed in its business and upon the bank pressing for payment the appellant in accordance with its guarantee made certain payments to that bank. The assessee had ultimately to write off certain sums in its books as bad debts and it claimed that allowance under Section 10(2)(xi). The Tribunal found that the advances to the managed company and the agreement guaranteeing the loan to the managed company were in pursuance of its objects and were made in the course of its business and the claim was allowed. That decision was finally affirmed by this court. In this case there was a clause in the memorandum of association by which the assessee was entitled to lend monies and to guarantee the performance of contracts. Similarly the managing agency agreement contained a clause about lending and advancing of money to the managed company. It was found by the appellate tribunal that it was a part of the managing agency to provide funds to the managed company.In the present case none of those facts has been found. Neither the memorandum of association nor the managing agency agreement contained any such provision by which it could be said that the guaranteeing of the loan made by the Bank to the selling agents was done in the course of the managing agency business.6. In our judgment the facts relied upon by the appellate tribunal and the High Court are barely sufficient for bringing the allowance claimed under Section 10(2)(xi). It may be mentioned that the case of the assessee was confined to that provision and no reliance was placed on any other provision under which such an allowance could be claimed.There was no privity of contract or any legal relationship between the assessee and the selling agent. Neither under custom nor under any statutory provision or any contractual obligation was the assessee bound to guarantee the loan advanced by the Bank to the selling agent. It is difficult how it was in the interest of the assessees business that the guarantee was given.There was even no material to establish that the managed company was under any legal obligation to finance the selling agent or to guarantee any loans advanced to the selling agent by a third party. It is incomprehensible in what manner the guaranteeing of the loan advanced to the selling agent indirectly facilitated the carrying on of the assessees business. It is equally difficult to appreciate the observations of the High Court that it was in the larger interest of the assessees business that the guarantee was given. In our opinion the view of the appellate tribunal was based on a complete misapprehension of the true legal position. The High Court also fell into the same error. The allowance which was claimed did not allwithin Section 10(2)(xi). No attempt was made nor indeed it could be usefully made to claim any allowance under Section 10(2)(xv) of the Act.
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1
### Explanation:
6. In our judgment the facts relied upon by the appellate tribunal and the High Court are barely sufficient for bringing the allowance claimed under Section 10(2)(xi). It may be mentioned that the case of the assessee was confined to that provision and no reliance was placed on any other provision under which such an allowance could be claimed.There was no privity of contract or any legal relationship between the assessee and the selling agent. Neither under custom nor under any statutory provision or any contractual obligation was the assessee bound to guarantee the loan advanced by the Bank to the selling agent. It is difficult how it was in the interest of the assessees business that the guarantee was given.There was even no material to establish that the managed company was under any legal obligation to finance the selling agent or to guarantee any loans advanced to the selling agent by a third party. It is incomprehensible in what manner the guaranteeing of the loan advanced to the selling agent indirectly facilitated the carrying on of the assessees business. It is equally difficult to appreciate the observations of the High Court that it was in the larger interest of the assessees business that the guarantee was given. In our opinion the view of the appellate tribunal was based on a complete misapprehension of the true legal position. The High Court also fell into the same error. The allowance which was claimed did not allwithin Section 10(2)(xi). No attempt was made nor indeed it could be usefully made to claim any allowance under Section 10(2)(xv) of the Act.
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Rupa Roy Vs. The New India Assurance Company Ltd. & Anr | by the Motor Accident Claims Tribunal & District Judge, Nadia in M.A.C. Case No.3 of 2005. 3. A few facts need to be mentioned hereinbelow for the disposal of this appeal, which involves a short point. 4. The appellant is the claimant (applicant) and the respondents are the non-applicants in the claim petition filed before the Motor Accident Claims Tribunal (hereinafter referred to as the Tribunal) out of which this appeal arises. 5. On 19.07.2004, when the appellant with her husband and minor son – Sourangshu was going towards Gachha Bazar Bus Stoppage on a rickshaw van, one Matador van bearing No. WB 57/5270 came on a high speed from opposite side and dashed the rickshaw van as a result of which all the occupants of the rickshaw van suffered serious injuries 6. The appellants minor son-Sourangshu aged around 10 years, who was travelling with the appellant-his mother, suffered multiple injuries on his body. He was taken to the hospital where he received the treatment for a long time. After treatment, it was certified that he was Orthopedically disabled with post-traumatic paraplegia and weakness in his right hand. The permanent disability in his body was diagnosed to the extent of 70% due to injuries caused to him in the accident. 7. This gave rise to filing of the claim petition by the appellant against the respondents, i.e., owner/driver and insurer of the offending vehicle under Section 166 of the Motor Vehicles Act, 1988(hereinafter referred to as the Act) claiming compensation for the disabilities caused to her son due to injuries. 8. It was inter alia alleged that the accident occurred due to rash and negligent driving of the driver/owner of the offending vehicle-respondent No. 2 and that it was insured with respondent No. 1 on the date of accident. It was alleged that due to permanent disability suffered by the appellants son, the appellant is entitled to claim suitable compensation for him. 9. The respondents contested the claim. By award dated 16.02.2008, the Tribunal partly allowed the appellants claim petition and awarded a compensation of Rs. 2,00,000/- to the appellant. The appellant felt aggrieved and filed an appeal before the High Court at Calcutta. By impugned order, the High Court dismissed the appeal which gives rise to filing of the present appeal by way of special leave by the appellant (claimant) in this Court. 10. Heard Mr. Rauf Rahim, learned counsel for the appellant and Mr. A. Jain, learned counsel for respondent No.1. 11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order modify the award passed by the Tribunal and accordingly enhance the compensation to the extent indicated hereinbelow in favour of the appellant. 12. On perusal of the impugned order, we find that the High Court did not assign any reason for dismissal of the appellants appeal, which reads as under: We have gone through the award so pronounced by the Motor Accident Claims Tribunal and we are of the opinion that there is no perversity or illegality in the award so passed by the Tribunal. 13. In our view, the High court committed jurisdictional error in dismissing the appeal because it failed to appreciate the evidence and also failed to assign any reason for the dismissal of the appeal. In the absence of any discussion and the reasoning, we are at a loss to know as to what persuaded the High Court to dismiss the appeal. 14. An appeal filed under Section 173 of the Act is akin to Section 96 of Code of Civil Procedure, 1908 (hereinafter referred to as the Code). The scope of the appellate powers under Section 173 of the Act, how such powers should be exercised while hearing the appeal and why it is necessary for the Courts to assign the reasons for reaching to the conclusion while passing any order/judgment was examined by this Court in the case of Uttar Pradesh State Road Transport Corporation vs. Mamta & Ors., (2016) 4 SCC 172 , G. Saraswathi & Ors. vs. Rathinammal & Ors., (2018) 3 SCC 340 and Central Board of Trustees vs. Indore Composite Pvt. Ltd., (2018) 8 SCC 443. 15. In our view, the High Court should have taken note of the law laid down by this Court in the aforementioned cases and should have decided the appeal accordingly. Since the High Court failed to do so and hence we are required to examine the case in the light of the evidence adduced by the appellant on the question as to the nature of injuries sustained by the victim-minor son of the appellant and the extent of permanent disability suffered by him on account of the injuries caused to him. 16. Therefore, the only question, which is involved in this appeal, is whether the Courts below were justified in awarding a sum of Rs.2,00,000/- to the appellant(claimant) for the injuries sustained by her minor son. So far as the other issue is concerned, such as liability of the Insurance Company, the same need not be considered because the Insurance Company has not questioned it. 17. On perusal of the evidence, we find that the victim, i.e., minor son of the appellant has suffered permanent disability in his body to the extent of 70%. The doctor has proved it. The minor was aged about 10 years at the time of accident. There is no evidence adduced in rebuttal by the respondents on this issue. 18. Taking into consideration the age of the victim, the extent of disability suffered by the victim in his early age, the medical treatment so far taken and to be taken in future to remedy the ailment, mental pain and suffering caused to the victim due to the injuries and lastly, the loss caused, the award of Rs.2,00,000/- by the Tribunal seems to be on lower side and the same deserves to be enhanced suitably. | 1[ds]12. On perusal of the impugned order, we find that the High Court did not assign any reason for dismissal of the appellants appeal, which reads asWe have gone through the award so pronounced by the Motor Accident Claims Tribunal and we are of the opinion that there is no perversity or illegality in the award so passed by the Tribunal13. In our view, the High court committed jurisdictional error in dismissing the appeal because it failed to appreciate the evidence and also failed to assign any reason for the dismissal of the appeal. In the absence of any discussion and the reasoning, we are at a loss to know as to what persuaded the High Court to dismiss the appeal15. In our view, the High Court should have taken note of the law laid down by this Court in the aforementioned cases and should have decided the appeal accordingly. Since the High Court failed to do so and hence we are required to examine the case in the light of the evidence adduced by the appellant on the question as to the nature of injuries sustained by the victim-minor son of the appellant and the extent of permanent disability suffered by him on account of the injuries caused to himSo far as the other issue is concerned, such as liability of the Insurance Company, the same need not be considered because the Insurance Company has not questioned it17. On perusal of the evidence, we find that the victim, i.e., minor son of the appellant has suffered permanent disability in his body to the extent of 70%. The doctor has proved it. The minor was aged about 10 years at the time of accident. There is no evidence adduced in rebuttal by the respondents on this issue18. Taking into consideration the age of the victim, the extent of disability suffered by the victim in his early age, the medical treatment so far taken and to be taken in future to remedy the ailment, mental pain and suffering caused to the victim due to the injuries and lastly, the loss caused, the award of Rs.2,00,000/- by the Tribunal seems to be on lower side and the same deserves to be enhanced suitably11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order modify the award passed by the Tribunal and accordingly enhance the compensation to the extent indicated hereinbelow in favour of the appellant. | 1 | 1,172 | 457 | ### 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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by the Motor Accident Claims Tribunal & District Judge, Nadia in M.A.C. Case No.3 of 2005. 3. A few facts need to be mentioned hereinbelow for the disposal of this appeal, which involves a short point. 4. The appellant is the claimant (applicant) and the respondents are the non-applicants in the claim petition filed before the Motor Accident Claims Tribunal (hereinafter referred to as the Tribunal) out of which this appeal arises. 5. On 19.07.2004, when the appellant with her husband and minor son – Sourangshu was going towards Gachha Bazar Bus Stoppage on a rickshaw van, one Matador van bearing No. WB 57/5270 came on a high speed from opposite side and dashed the rickshaw van as a result of which all the occupants of the rickshaw van suffered serious injuries 6. The appellants minor son-Sourangshu aged around 10 years, who was travelling with the appellant-his mother, suffered multiple injuries on his body. He was taken to the hospital where he received the treatment for a long time. After treatment, it was certified that he was Orthopedically disabled with post-traumatic paraplegia and weakness in his right hand. The permanent disability in his body was diagnosed to the extent of 70% due to injuries caused to him in the accident. 7. This gave rise to filing of the claim petition by the appellant against the respondents, i.e., owner/driver and insurer of the offending vehicle under Section 166 of the Motor Vehicles Act, 1988(hereinafter referred to as the Act) claiming compensation for the disabilities caused to her son due to injuries. 8. It was inter alia alleged that the accident occurred due to rash and negligent driving of the driver/owner of the offending vehicle-respondent No. 2 and that it was insured with respondent No. 1 on the date of accident. It was alleged that due to permanent disability suffered by the appellants son, the appellant is entitled to claim suitable compensation for him. 9. The respondents contested the claim. By award dated 16.02.2008, the Tribunal partly allowed the appellants claim petition and awarded a compensation of Rs. 2,00,000/- to the appellant. The appellant felt aggrieved and filed an appeal before the High Court at Calcutta. By impugned order, the High Court dismissed the appeal which gives rise to filing of the present appeal by way of special leave by the appellant (claimant) in this Court. 10. Heard Mr. Rauf Rahim, learned counsel for the appellant and Mr. A. Jain, learned counsel for respondent No.1. 11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order modify the award passed by the Tribunal and accordingly enhance the compensation to the extent indicated hereinbelow in favour of the appellant. 12. On perusal of the impugned order, we find that the High Court did not assign any reason for dismissal of the appellants appeal, which reads as under: We have gone through the award so pronounced by the Motor Accident Claims Tribunal and we are of the opinion that there is no perversity or illegality in the award so passed by the Tribunal. 13. In our view, the High court committed jurisdictional error in dismissing the appeal because it failed to appreciate the evidence and also failed to assign any reason for the dismissal of the appeal. In the absence of any discussion and the reasoning, we are at a loss to know as to what persuaded the High Court to dismiss the appeal. 14. An appeal filed under Section 173 of the Act is akin to Section 96 of Code of Civil Procedure, 1908 (hereinafter referred to as the Code). The scope of the appellate powers under Section 173 of the Act, how such powers should be exercised while hearing the appeal and why it is necessary for the Courts to assign the reasons for reaching to the conclusion while passing any order/judgment was examined by this Court in the case of Uttar Pradesh State Road Transport Corporation vs. Mamta & Ors., (2016) 4 SCC 172 , G. Saraswathi & Ors. vs. Rathinammal & Ors., (2018) 3 SCC 340 and Central Board of Trustees vs. Indore Composite Pvt. Ltd., (2018) 8 SCC 443. 15. In our view, the High Court should have taken note of the law laid down by this Court in the aforementioned cases and should have decided the appeal accordingly. Since the High Court failed to do so and hence we are required to examine the case in the light of the evidence adduced by the appellant on the question as to the nature of injuries sustained by the victim-minor son of the appellant and the extent of permanent disability suffered by him on account of the injuries caused to him. 16. Therefore, the only question, which is involved in this appeal, is whether the Courts below were justified in awarding a sum of Rs.2,00,000/- to the appellant(claimant) for the injuries sustained by her minor son. So far as the other issue is concerned, such as liability of the Insurance Company, the same need not be considered because the Insurance Company has not questioned it. 17. On perusal of the evidence, we find that the victim, i.e., minor son of the appellant has suffered permanent disability in his body to the extent of 70%. The doctor has proved it. The minor was aged about 10 years at the time of accident. There is no evidence adduced in rebuttal by the respondents on this issue. 18. Taking into consideration the age of the victim, the extent of disability suffered by the victim in his early age, the medical treatment so far taken and to be taken in future to remedy the ailment, mental pain and suffering caused to the victim due to the injuries and lastly, the loss caused, the award of Rs.2,00,000/- by the Tribunal seems to be on lower side and the same deserves to be enhanced suitably.
### Response:
1
### Explanation:
12. On perusal of the impugned order, we find that the High Court did not assign any reason for dismissal of the appellants appeal, which reads asWe have gone through the award so pronounced by the Motor Accident Claims Tribunal and we are of the opinion that there is no perversity or illegality in the award so passed by the Tribunal13. In our view, the High court committed jurisdictional error in dismissing the appeal because it failed to appreciate the evidence and also failed to assign any reason for the dismissal of the appeal. In the absence of any discussion and the reasoning, we are at a loss to know as to what persuaded the High Court to dismiss the appeal15. In our view, the High Court should have taken note of the law laid down by this Court in the aforementioned cases and should have decided the appeal accordingly. Since the High Court failed to do so and hence we are required to examine the case in the light of the evidence adduced by the appellant on the question as to the nature of injuries sustained by the victim-minor son of the appellant and the extent of permanent disability suffered by him on account of the injuries caused to himSo far as the other issue is concerned, such as liability of the Insurance Company, the same need not be considered because the Insurance Company has not questioned it17. On perusal of the evidence, we find that the victim, i.e., minor son of the appellant has suffered permanent disability in his body to the extent of 70%. The doctor has proved it. The minor was aged about 10 years at the time of accident. There is no evidence adduced in rebuttal by the respondents on this issue18. Taking into consideration the age of the victim, the extent of disability suffered by the victim in his early age, the medical treatment so far taken and to be taken in future to remedy the ailment, mental pain and suffering caused to the victim due to the injuries and lastly, the loss caused, the award of Rs.2,00,000/- by the Tribunal seems to be on lower side and the same deserves to be enhanced suitably11. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order modify the award passed by the Tribunal and accordingly enhance the compensation to the extent indicated hereinbelow in favour of the appellant.
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Cochin State Power And Light Corporation Ltd Vs. State Of Kerala | the coming into force of the new S. 6, that is to say, after September 5, 1959, and since the period expiring on December 2, 1960 is not such a period, the new S. 6 (1) did not confer any option of purchase on the expiry of December 2, 1960; and (4) in any event, the state Electricity Board having duly elected to purchase the undertaking on the expiry of December 2, 1960, the state Government acquired no option of purchase under sub-s. (2) of S. 6 of the Indian Electricity Act, 1910. 6. On behalf of the respondent, Mr. V. P. Gopalan Nambiar, the Advocate-General of Kerala, contended (1) that the absence of two years notice under the old S. 7 (4) of the Indian Electricity Act, 1910 did not confer upon the appellant a vested right to bold the license until the expiry of December 2, 1970, and the immunity, from compulsory purchase under the old S. 7 arising from the non-service of the requisite two years notice could be, and, in fact, was taken away by the new S. 6, which required only one years notice of intention to purchase the undertaking; (2) assuming that the appellant acquired under the old S. 7 a vested right to hold the license until December 2, 1970, such vested right was taken away by the new S. 6, which expressly applies to licenses granted before its commencement, and the period of 25 years is a period specified in the license on the expiry of which the option of purchase was legally exercisable; (3) sub-ss. (4) and (5) of the new S. 6 did not cut down the plain meaning of sub-s. (1) of the section and the option on the expiry of the period of 25 years was vested under sub-s. (1) of S. 6, though this period did not expire 18 months after September 5, 1959; and (4) as the state Electricity Board did not send to the state Government any intimation in writing of its intention to exercise the option on the expiry of December 2, 1960 as required by sub-s. (4) of S. 6, the Board must be deemed to have elected not to exercise this option, and consequently by sub-s. (2) of S. 6, the state Government is vested with the option. 7. We think that the fourth contention of Mr. Viswanatha Sastry is sound, and should be accepted, Assuming, without deciding, that the option of purchasing the undertaking on the expiry of the period of 25 years specified in the license was available under sub-s. (1) of S. 6, such option vested in the state Electricity Board and as the Board duly elected to purchase the undertaking, the state Government acquired no right or option of purchasing the undertaking under S.6. on this ground alone, the appeal should he allowed, and in this view of the matter, we do not think it necessary to express any opinion on the other contentions urged before us. As far as the state Electricity Board is concerned, it has abandoned and waived its option of purchase on the expiry of 25 years. 8. Sub-section (1) of S. 6 expressly vests in the state Electricity Board the option of purchase on the expiry of the relevant period specified in the license. But the State Government claims that under sub-s. (2) of S. 6 it is now vested with the option. Now, under sub-s. (2) of S. 6, the state Government would be vested with the option only where a state Electricity Board has not been constituted, or if constituted, does not elect to purchase the undertaking.It is common case that the state Electricity Board was duly constituted. But the State Government claims that the State Electricity Board did not elect to purchase the undertaking. For this purpose, the state Government relies upon the deeming provisions of sub-s. (4) of S. 6, and contends that as the Board did not send to the state Government any intimation in writing of its intention to exercise the option as required by the sub-section, the Board must be deemed to have elected not to purchase the undertaking. Now, the effect of sub-s. (4) read with sub-s. (2) of S. 6 is that on failure of the Board to give the notice prescribed by sub-s. (4), the option vested in the Board under sub-s. (1) of S. 6 was liable to be divested, sub-section (4) of S. 6 imposed upon the Board the duty of giving after the coming into force of S. 6 a notice in writing of its intention to exercise the option at least 18 month; before the expiry of the relevant period. Section 6 came into force on September 5, 1959, and the relevant period expired on December, 3, 1960. In the circumstances, the giving of the requisite notice of 18 months in respect of the option of purchase on the expiry of December 2, 1960 was impossible from the very commencement of S. 6. The performance of this impossible duty must be excused in accordance with the maxim, lex non cogit ad impossibilia (the law does not compel the doing of impossibilities), and sub-s. (4) of S. 6 must be construed as not being applicable to a case where compliance with it is impossible., We must, therefore, hold that the State Electricity Board was not required to give the notice under sub-s. (4) of S. 6 in respect of its option of purchase on the expiry of 25 years. It must follow that the Board cannot be deemed to have elected not to purchase the undertaking under sub-s. (4) of S.6 By the notice served upon the appellant, the Board duly elected to purchase the undertaking on the expiry of 25 years. Consequently, the State Government never became vested with the option of purchasing the undertaking under sub-s. (2) of S.6 The State Government must, therefore, be restrained from taking action under it; notice, Ex. G. dated November 20 1959. | 1[ds]7. We think that the fourth contention of Mr. Viswanatha Sastry is sound, and should be accepted, Assuming, without deciding, that the option of purchasing the undertaking on the expiry of the period of 25 years specified in the license was available under sub-s. (1) of S. 6, such option vested in the state Electricity Board and as the Board duly elected to purchase the undertaking, the state Government acquired no right or option of purchasing the undertaking under S.6. on this ground alone, the appeal should he allowed, and in this view of the matter, we do not think it necessary to express any opinion on the other contentions urged before us. As far as the state Electricity Board is concerned, it has abandoned and waived its option of purchase on the expiry of 25 years8. Sub-section (1) of S. 6 expressly vests in the state Electricity Board the option of purchase on the expiry of the relevant period specified in the license. But the State Government claims that under sub-s. (2) of S. 6 it is now vested with the option. Now, under sub-s. (2) of S. 6, the state Government would be vested with the option only where a state Electricity Board has not been constituted, or if constituted, does not elect to purchase the undertaking.It is common case that the state Electricity Board was duly constituted. But the State Government claims that the State Electricity Board did not elect to purchase the undertaking. For this purpose, the state Government relies upon the deeming provisions of sub-s. (4) of S. 6, and contends that as the Board did not send to the state Government any intimation in writing of its intention to exercise the option as required by the sub-section, the Board must be deemed to have elected not to purchase the undertaking. Now, the effect of sub-s. (4) read with sub-s. (2) of S. 6 is that on failure of the Board to give the notice prescribed by sub-s. (4), the option vested in the Board under sub-s. (1) of S. 6 was liable to be divested, sub-section (4) of S. 6 imposed upon the Board the duty of giving after the coming into force of S. 6 a notice in writing of its intention to exercise the option at least 18 month; before the expiry of the relevant period. Section 6 came into force on September 5, 1959, and the relevant period expired on December, 3, 1960. In the circumstances, the giving of the requisite notice of 18 months in respect of the option of purchase on the expiry of December 2, 1960 was impossible from the very commencement of S. 6. The performance of this impossible duty must be excused in accordance with the maxim, lex non cogit ad impossibilia (the law does not compel the doing of impossibilities), and sub-s. (4) of S. 6 must be construed as not being applicable to a case where compliance with it is impossible., We must, therefore, hold that the State Electricity Board was not required to give the notice under sub-s. (4) of S. 6 in respect of its option of purchase on the expiry of 25 years. It must follow that the Board cannot be deemed to have elected not to purchase the undertaking under sub-s. (4) of S.6 By the notice served upon the appellant, the Board duly elected to purchase the undertaking on the expiry of 25 years. Consequently, the State Government never became vested with the option of purchasing the undertaking under sub-s. (2) of S.6 The State Government must, therefore, be restrained from taking action under it; notice, Ex. G. dated November 20 1959. | 1 | 3,350 | 702 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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the coming into force of the new S. 6, that is to say, after September 5, 1959, and since the period expiring on December 2, 1960 is not such a period, the new S. 6 (1) did not confer any option of purchase on the expiry of December 2, 1960; and (4) in any event, the state Electricity Board having duly elected to purchase the undertaking on the expiry of December 2, 1960, the state Government acquired no option of purchase under sub-s. (2) of S. 6 of the Indian Electricity Act, 1910. 6. On behalf of the respondent, Mr. V. P. Gopalan Nambiar, the Advocate-General of Kerala, contended (1) that the absence of two years notice under the old S. 7 (4) of the Indian Electricity Act, 1910 did not confer upon the appellant a vested right to bold the license until the expiry of December 2, 1970, and the immunity, from compulsory purchase under the old S. 7 arising from the non-service of the requisite two years notice could be, and, in fact, was taken away by the new S. 6, which required only one years notice of intention to purchase the undertaking; (2) assuming that the appellant acquired under the old S. 7 a vested right to hold the license until December 2, 1970, such vested right was taken away by the new S. 6, which expressly applies to licenses granted before its commencement, and the period of 25 years is a period specified in the license on the expiry of which the option of purchase was legally exercisable; (3) sub-ss. (4) and (5) of the new S. 6 did not cut down the plain meaning of sub-s. (1) of the section and the option on the expiry of the period of 25 years was vested under sub-s. (1) of S. 6, though this period did not expire 18 months after September 5, 1959; and (4) as the state Electricity Board did not send to the state Government any intimation in writing of its intention to exercise the option on the expiry of December 2, 1960 as required by sub-s. (4) of S. 6, the Board must be deemed to have elected not to exercise this option, and consequently by sub-s. (2) of S. 6, the state Government is vested with the option. 7. We think that the fourth contention of Mr. Viswanatha Sastry is sound, and should be accepted, Assuming, without deciding, that the option of purchasing the undertaking on the expiry of the period of 25 years specified in the license was available under sub-s. (1) of S. 6, such option vested in the state Electricity Board and as the Board duly elected to purchase the undertaking, the state Government acquired no right or option of purchasing the undertaking under S.6. on this ground alone, the appeal should he allowed, and in this view of the matter, we do not think it necessary to express any opinion on the other contentions urged before us. As far as the state Electricity Board is concerned, it has abandoned and waived its option of purchase on the expiry of 25 years. 8. Sub-section (1) of S. 6 expressly vests in the state Electricity Board the option of purchase on the expiry of the relevant period specified in the license. But the State Government claims that under sub-s. (2) of S. 6 it is now vested with the option. Now, under sub-s. (2) of S. 6, the state Government would be vested with the option only where a state Electricity Board has not been constituted, or if constituted, does not elect to purchase the undertaking.It is common case that the state Electricity Board was duly constituted. But the State Government claims that the State Electricity Board did not elect to purchase the undertaking. For this purpose, the state Government relies upon the deeming provisions of sub-s. (4) of S. 6, and contends that as the Board did not send to the state Government any intimation in writing of its intention to exercise the option as required by the sub-section, the Board must be deemed to have elected not to purchase the undertaking. Now, the effect of sub-s. (4) read with sub-s. (2) of S. 6 is that on failure of the Board to give the notice prescribed by sub-s. (4), the option vested in the Board under sub-s. (1) of S. 6 was liable to be divested, sub-section (4) of S. 6 imposed upon the Board the duty of giving after the coming into force of S. 6 a notice in writing of its intention to exercise the option at least 18 month; before the expiry of the relevant period. Section 6 came into force on September 5, 1959, and the relevant period expired on December, 3, 1960. In the circumstances, the giving of the requisite notice of 18 months in respect of the option of purchase on the expiry of December 2, 1960 was impossible from the very commencement of S. 6. The performance of this impossible duty must be excused in accordance with the maxim, lex non cogit ad impossibilia (the law does not compel the doing of impossibilities), and sub-s. (4) of S. 6 must be construed as not being applicable to a case where compliance with it is impossible., We must, therefore, hold that the State Electricity Board was not required to give the notice under sub-s. (4) of S. 6 in respect of its option of purchase on the expiry of 25 years. It must follow that the Board cannot be deemed to have elected not to purchase the undertaking under sub-s. (4) of S.6 By the notice served upon the appellant, the Board duly elected to purchase the undertaking on the expiry of 25 years. Consequently, the State Government never became vested with the option of purchasing the undertaking under sub-s. (2) of S.6 The State Government must, therefore, be restrained from taking action under it; notice, Ex. G. dated November 20 1959.
### Response:
1
### Explanation:
7. We think that the fourth contention of Mr. Viswanatha Sastry is sound, and should be accepted, Assuming, without deciding, that the option of purchasing the undertaking on the expiry of the period of 25 years specified in the license was available under sub-s. (1) of S. 6, such option vested in the state Electricity Board and as the Board duly elected to purchase the undertaking, the state Government acquired no right or option of purchasing the undertaking under S.6. on this ground alone, the appeal should he allowed, and in this view of the matter, we do not think it necessary to express any opinion on the other contentions urged before us. As far as the state Electricity Board is concerned, it has abandoned and waived its option of purchase on the expiry of 25 years8. Sub-section (1) of S. 6 expressly vests in the state Electricity Board the option of purchase on the expiry of the relevant period specified in the license. But the State Government claims that under sub-s. (2) of S. 6 it is now vested with the option. Now, under sub-s. (2) of S. 6, the state Government would be vested with the option only where a state Electricity Board has not been constituted, or if constituted, does not elect to purchase the undertaking.It is common case that the state Electricity Board was duly constituted. But the State Government claims that the State Electricity Board did not elect to purchase the undertaking. For this purpose, the state Government relies upon the deeming provisions of sub-s. (4) of S. 6, and contends that as the Board did not send to the state Government any intimation in writing of its intention to exercise the option as required by the sub-section, the Board must be deemed to have elected not to purchase the undertaking. Now, the effect of sub-s. (4) read with sub-s. (2) of S. 6 is that on failure of the Board to give the notice prescribed by sub-s. (4), the option vested in the Board under sub-s. (1) of S. 6 was liable to be divested, sub-section (4) of S. 6 imposed upon the Board the duty of giving after the coming into force of S. 6 a notice in writing of its intention to exercise the option at least 18 month; before the expiry of the relevant period. Section 6 came into force on September 5, 1959, and the relevant period expired on December, 3, 1960. In the circumstances, the giving of the requisite notice of 18 months in respect of the option of purchase on the expiry of December 2, 1960 was impossible from the very commencement of S. 6. The performance of this impossible duty must be excused in accordance with the maxim, lex non cogit ad impossibilia (the law does not compel the doing of impossibilities), and sub-s. (4) of S. 6 must be construed as not being applicable to a case where compliance with it is impossible., We must, therefore, hold that the State Electricity Board was not required to give the notice under sub-s. (4) of S. 6 in respect of its option of purchase on the expiry of 25 years. It must follow that the Board cannot be deemed to have elected not to purchase the undertaking under sub-s. (4) of S.6 By the notice served upon the appellant, the Board duly elected to purchase the undertaking on the expiry of 25 years. Consequently, the State Government never became vested with the option of purchasing the undertaking under sub-s. (2) of S.6 The State Government must, therefore, be restrained from taking action under it; notice, Ex. G. dated November 20 1959.
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Kamlabai & Others Vs. Sheo Shankar Dayal & Another | said properties. Mst. Jotkunwar, however, reserved to herself cultivating rights in sir lands consisting of 91.5 acres. Nankaiya died in 1909 and on his death his share was recorded in the names of Jira Bai and her two sons Brindaban and Mathura Prasad. In the month of November, 1918 both Brindaban and Mathura Prasad died. Mathura Prasad was unmarried and Brindaban left a widow, Mst. Ramdulari. The interest of Mathura Prasad was mutated in favour of Padumnath, husband of Jira Bai, and that of Brindaban in favour of his widow, Ramdulari. The property thus came to be divided into three shares - 1/3 each to Jira Bai, Padumnath and Ramdulari. Jira Bai died on 26-7-1927. There had been some litigation in 1923. After the decision of the Court, mutation took place and 3/4 share in the property was recorded in the name of Padumnath and 1/4 in the name of Ramdulari. On 9-2-1938, Padumnath made a gift of his 1/4 share in favour of his daughter Kamalabati alias Kamalabai. Padumnath died on 10-4-1938.3. Mst. Jotkunwars husband, Raghurai, had a brother Ramprasad who died in 1902 leaving two sons Sheoshankar Dayal, the plaintiff in the present suit, and Ramdayal who died in 1918. Sheoshankar Dayal filed the present suit on 25-1-1943. His case was that the document of 1906 was a deed of gift and not a deed of surrender in favour of the next reversioner. On the death of Jotkunwar he was entitled to the suit property as the gift could not operate after her death. The trial court held that the document of 1906 was not a deed of gift. Mst. Jotkunwar had completely divested herself of the entire estate and there had been a valid surrender of the whole estate by her in favour of Jira Bai and by Jira Bai in favour of her sons. The trial court further found that Kamalabai and Ramdulari had been in adverse possession of the properties from 26-7-1927. The plaintiffs suit was accordingly barred by limitation. The Subordinate Judge, accordingly dismissed the plaintiffs suit.4. We have examined the reasons given by the trial court for holding that the document of 1906 executed by Jotkunwar and the supposed act of Jira Bai amounted to a valid surrender of the whole estate of Raghurai accelerating the succession to his estate. We have also examined the grounds upon which the High Court took a contrary view holding that the document of 1906 and the supposed act of Jira Bai did not amount to a valid surrender of the whole estate of Raghurai. On a proper appreciation of the aforesaid transactions there had been no. acceleration of the succession to the estate of Raghurai by a complete self-effacement on the part of Jotkunwar and Jira Bai. Accordingly, the transactions were in the nature of gifts which could only operate up to the death of Jotkunwar. We have construed the document of 1906 and have kept in mind the submissions made on behalf of the appellants and have come to the conclusion that the view taken by the High Court was the correct view. It is quite clear from the terms of the document that Jotkunwar did not surrender the whole of the estate which came to her from her husband. She had reserved to herself cultivating rights in the sir lands to the extent of 91.5 acres. Such an area was a substantial area. The surrender, therefore, was not complete. The self-effacement by Jotkunwar and her daughter Jira Bai to be of any consequence had to be complete self-effacement and with respect to the whole of the estate of Raghurai. A partial self-effacement was not a surrender in the true sense and did not accelerate the succession to the estate of Raghurai. The subsequent gift of 91.5 acres on similar terms to Jira Bai and her three sons did not advance the matter any further as neither the document of 1906 nor the latter gift amounted to a valid surrender.5. If there was no. valid surrender by Jotkunwar and succession to Raghurais estate was not accelerated no. question of adverse possession can arise in the present case. It is only on the death of Jotkunwar that the estate of Raghurai vests in the nearest reversioners in existence at that time. The present suit was brought within a few months of the death of Jotkunwar. It was accordingly not barred by limitation.6. It may be mentioned that the Madhya Pradesh Abolition of Proprietary Rights (Estates. Mahals, Alienated Lands) Act, 1950, received the assent of the President on 22-1-1951 and was published in the Madhya Pradesh Gazette Extraordinary on 26-1-1951. Under this Act when a notification is issued under S. 3, all proprietary rights in an estate, mahal, alienated village or alienated land, as the case may be, in the areas specified in the notification, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free from all encumbrances. Section 4 deals with the consequences of the vesting ensuing upon the issue of such a notification. The Advocate for the appellants was asked as to how the rights of his clients would be affected by this legislation, if the properties, other than houses Nos. 2 and 3, had vested in the State. He found himself in some difficulty in explaining what would be the practical advantage to his clients if the appeal succeeded. We merely make a mention of this not because it has any relevancy on the question whether the High Court rightly decided that there had been no. valid surrender by which succession to the estate of Raghurai was accelerated. This aspect of the mater merely arose in connection with the question whether costs of this Court should be allowed to the respondent if the appeal failed. The learned Advocate on behalf of the respondents, after consulting his client, informed us that he left the matter of costs to the discretion of the Court. | 1[ds]4. We have examined the reasons given by the trial court for holding that the document of 1906 executed by Jotkunwar and the supposed act of Jira Bai amounted to a valid surrender of the whole estate of Raghurai accelerating the succession to his estate. We have also examined the grounds upon which the High Court took a contrary view holding that the document of 1906 and the supposed act of Jira Bai did not amount to a valid surrender of the whole estate of Raghurai. On a proper appreciation of the aforesaid transactions there had been no. acceleration of the succession to the estate of Raghurai by a completeon the part of Jotkunwar and Jira Bai. Accordingly, the transactions were in the nature of gifts which could only operate up to the death of Jotkunwar. We have construed the document of 1906 and have kept in mind the submissions made on behalf of the appellants and have come to the conclusion that the view taken by the High Court was the correct view. It is quite clear from the terms of the document that Jotkunwar did not surrender the whole of the estate which came to her from her husband. She had reserved to herself cultivating rights in the sir lands to the extent of 91.5 acres. Such an area was a substantial area. The surrender, therefore, was not complete. Theby Jotkunwar and her daughter Jira Bai to be of any consequence had to be completeand with respect to the whole of the estate of Raghurai. A partialwas not a surrender in the true sense and did not accelerate the succession to the estate of Raghurai. The subsequent gift of 91.5 acres on similar terms to Jira Bai and her three sons did not advance the matter any further as neither the document of 1906 nor the latter gift amounted to a valid surrender.5. If there was no. valid surrender by Jotkunwar and succession to Raghurais estate was not accelerated no. question of adverse possession can arise in the present case. It is only on the death of Jotkunwar that the estate of Raghurai vests in the nearest reversioners in existence at that time. The present suit was brought within a few months of the death of Jotkunwar. It was accordingly not barred by limitation. | 1 | 1,196 | 413 | ### Instruction:
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said properties. Mst. Jotkunwar, however, reserved to herself cultivating rights in sir lands consisting of 91.5 acres. Nankaiya died in 1909 and on his death his share was recorded in the names of Jira Bai and her two sons Brindaban and Mathura Prasad. In the month of November, 1918 both Brindaban and Mathura Prasad died. Mathura Prasad was unmarried and Brindaban left a widow, Mst. Ramdulari. The interest of Mathura Prasad was mutated in favour of Padumnath, husband of Jira Bai, and that of Brindaban in favour of his widow, Ramdulari. The property thus came to be divided into three shares - 1/3 each to Jira Bai, Padumnath and Ramdulari. Jira Bai died on 26-7-1927. There had been some litigation in 1923. After the decision of the Court, mutation took place and 3/4 share in the property was recorded in the name of Padumnath and 1/4 in the name of Ramdulari. On 9-2-1938, Padumnath made a gift of his 1/4 share in favour of his daughter Kamalabati alias Kamalabai. Padumnath died on 10-4-1938.3. Mst. Jotkunwars husband, Raghurai, had a brother Ramprasad who died in 1902 leaving two sons Sheoshankar Dayal, the plaintiff in the present suit, and Ramdayal who died in 1918. Sheoshankar Dayal filed the present suit on 25-1-1943. His case was that the document of 1906 was a deed of gift and not a deed of surrender in favour of the next reversioner. On the death of Jotkunwar he was entitled to the suit property as the gift could not operate after her death. The trial court held that the document of 1906 was not a deed of gift. Mst. Jotkunwar had completely divested herself of the entire estate and there had been a valid surrender of the whole estate by her in favour of Jira Bai and by Jira Bai in favour of her sons. The trial court further found that Kamalabai and Ramdulari had been in adverse possession of the properties from 26-7-1927. The plaintiffs suit was accordingly barred by limitation. The Subordinate Judge, accordingly dismissed the plaintiffs suit.4. We have examined the reasons given by the trial court for holding that the document of 1906 executed by Jotkunwar and the supposed act of Jira Bai amounted to a valid surrender of the whole estate of Raghurai accelerating the succession to his estate. We have also examined the grounds upon which the High Court took a contrary view holding that the document of 1906 and the supposed act of Jira Bai did not amount to a valid surrender of the whole estate of Raghurai. On a proper appreciation of the aforesaid transactions there had been no. acceleration of the succession to the estate of Raghurai by a complete self-effacement on the part of Jotkunwar and Jira Bai. Accordingly, the transactions were in the nature of gifts which could only operate up to the death of Jotkunwar. We have construed the document of 1906 and have kept in mind the submissions made on behalf of the appellants and have come to the conclusion that the view taken by the High Court was the correct view. It is quite clear from the terms of the document that Jotkunwar did not surrender the whole of the estate which came to her from her husband. She had reserved to herself cultivating rights in the sir lands to the extent of 91.5 acres. Such an area was a substantial area. The surrender, therefore, was not complete. The self-effacement by Jotkunwar and her daughter Jira Bai to be of any consequence had to be complete self-effacement and with respect to the whole of the estate of Raghurai. A partial self-effacement was not a surrender in the true sense and did not accelerate the succession to the estate of Raghurai. The subsequent gift of 91.5 acres on similar terms to Jira Bai and her three sons did not advance the matter any further as neither the document of 1906 nor the latter gift amounted to a valid surrender.5. If there was no. valid surrender by Jotkunwar and succession to Raghurais estate was not accelerated no. question of adverse possession can arise in the present case. It is only on the death of Jotkunwar that the estate of Raghurai vests in the nearest reversioners in existence at that time. The present suit was brought within a few months of the death of Jotkunwar. It was accordingly not barred by limitation.6. It may be mentioned that the Madhya Pradesh Abolition of Proprietary Rights (Estates. Mahals, Alienated Lands) Act, 1950, received the assent of the President on 22-1-1951 and was published in the Madhya Pradesh Gazette Extraordinary on 26-1-1951. Under this Act when a notification is issued under S. 3, all proprietary rights in an estate, mahal, alienated village or alienated land, as the case may be, in the areas specified in the notification, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free from all encumbrances. Section 4 deals with the consequences of the vesting ensuing upon the issue of such a notification. The Advocate for the appellants was asked as to how the rights of his clients would be affected by this legislation, if the properties, other than houses Nos. 2 and 3, had vested in the State. He found himself in some difficulty in explaining what would be the practical advantage to his clients if the appeal succeeded. We merely make a mention of this not because it has any relevancy on the question whether the High Court rightly decided that there had been no. valid surrender by which succession to the estate of Raghurai was accelerated. This aspect of the mater merely arose in connection with the question whether costs of this Court should be allowed to the respondent if the appeal failed. The learned Advocate on behalf of the respondents, after consulting his client, informed us that he left the matter of costs to the discretion of the Court.
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4. We have examined the reasons given by the trial court for holding that the document of 1906 executed by Jotkunwar and the supposed act of Jira Bai amounted to a valid surrender of the whole estate of Raghurai accelerating the succession to his estate. We have also examined the grounds upon which the High Court took a contrary view holding that the document of 1906 and the supposed act of Jira Bai did not amount to a valid surrender of the whole estate of Raghurai. On a proper appreciation of the aforesaid transactions there had been no. acceleration of the succession to the estate of Raghurai by a completeon the part of Jotkunwar and Jira Bai. Accordingly, the transactions were in the nature of gifts which could only operate up to the death of Jotkunwar. We have construed the document of 1906 and have kept in mind the submissions made on behalf of the appellants and have come to the conclusion that the view taken by the High Court was the correct view. It is quite clear from the terms of the document that Jotkunwar did not surrender the whole of the estate which came to her from her husband. She had reserved to herself cultivating rights in the sir lands to the extent of 91.5 acres. Such an area was a substantial area. The surrender, therefore, was not complete. Theby Jotkunwar and her daughter Jira Bai to be of any consequence had to be completeand with respect to the whole of the estate of Raghurai. A partialwas not a surrender in the true sense and did not accelerate the succession to the estate of Raghurai. The subsequent gift of 91.5 acres on similar terms to Jira Bai and her three sons did not advance the matter any further as neither the document of 1906 nor the latter gift amounted to a valid surrender.5. If there was no. valid surrender by Jotkunwar and succession to Raghurais estate was not accelerated no. question of adverse possession can arise in the present case. It is only on the death of Jotkunwar that the estate of Raghurai vests in the nearest reversioners in existence at that time. The present suit was brought within a few months of the death of Jotkunwar. It was accordingly not barred by limitation.
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STAR INDIA PRIVATE LIMITED Vs. DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION | by following the rules. It shall publish the date of coming into of the revised Tariff Scheme at least before two months in advance and the same shall be posted on its website.”62. At this juncture, it is of a little importance to compare and contrast Section 2(dd) of the Copyright Act with “broadcasting services” as defined in the impugned Regulation and Tariff Order. By Clause 2(j) of the impugned Regulation, “broadcasting services” is defined as follows:"2(j) “broadcasting services” means the dissemination of any form of communication like signs, signals, writing, pictures, images and sounds of all kinds by transmission of electro-magnetic waves through space or through cables intended to be received by the general public either directly or indirectly and all its grammatical variations and cognate expressions shall be construed accordingly;”63. When the definitions of “broadcast” in Section 2(dd) of the Copyright Act and of “broadcasting services” in Clause 2(j) of the impugned Regulation are compared, what is clear is that the words “intended to be received by the general public either directly or indirectly” are completely missing from the definition of “broadcast” contained in the Copyright Act. Also, Section 52(1)(b) of the Copyright Act indicates that transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public is not an act that would constitute infringement of copyright. Section 52(1)(b) reads as follows:“52. Certain acts not to be infringement of copright.- (1) The following acts shall no constitute an infringement of copyright, namely:-xxx xxx xxx(b) the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public;”64. The picture that, therefore, emerges is that copyright is meant to protect the proprietary interest of the owner, which in the present case is a broadcaster, in the “work”, i.e. the original work, its broadcast and/or its re-broadcast by him. The interest of the end user or consumer is not the focus of the Copyright Act at all. On the other hand, the TRAI Act has to focus on broadcasting services provided by the broadcaster that impact the ultimate consumer. The focus, therefore, of TRAI is that of a regulatory authority, which looks to the interest of both broadcaster and subscriber so as to provide a level playing field for both in which regulations can be laid down which affect the manner and carriage of broadcast to the ultimate consumers. Once the relative scope of both the enactments is understood as above, there can be no difficulty in stating that the two Acts operate in different fields. We do not find on a reading of the impugned Regulation as well as the Tariff Order made that TRAI has transgressed into copyright land. This is for the reason, as has been stated hereinabove, that regulations which allegedly impact packaging TV channels, pricing of TV channels and the broadcaster’s right to arrange his business as he pleases, all have to be viewed with the lens of a regulatory authority, which is to provide a level playing field between broadcaster and subscriber. We have also noted how the broadcaster is free to provide whatever content he chooses for the TV channels that he chooses to transmit to the ultimate consumer. We have also noted how the broadcaster is free to arrange pricing of his TV channels so long as they are non- discriminatory and do not otherwise have the effect of unreasonably restricting the choice of a subscriber to choose bouquet or a-la-carte channels as has been held hereinabove. We are satisfied that the impugned Regulation and Tariff Order have been passed by a regulatory authority after applying its mind to the objections of the various stakeholders involved after which the Regulation and Tariff Order have been laid down which have, by and large, been initially acceded to by the broadcasters themselves. In this view of the matter, we are of the view that the Copyright Act will operate within its own sphere, the broadcaster being given full flexibility to either individually or in the form of a society charge royalty or compensation for the three kinds of copyright mentioned hereinabove. TRAI, while exercising its regulatory functions under the TRAI Act, does not at all, in substance, impinge upon any of these rights, but merely acts, as has been stated hereinabove, as a regulator, in the public interest, of broadcasting services provided by broadcasters and availed of by the ultimate consumer.65. As Dr. Singhvi has repeatedly stressed that fixation of rates under Section 11(2) would directly impinge upon compensation payable for copyright to the broadcasters, it is important to note that both the Copyright Act as well as the TRAI Act are central enactments which do not expressly provide that the one overrides the other. In this situation, a basic principle of interpretation of statutes is that both Acts be harmonized in the event of any clash/conflict between the two so that both may be given effect to. In fact, Section 38 of the TRAI Act reads as under:-“38. Application of certain laws. – The provisions of this Act shall be in addition to the provisions of the Indian Telegraph Act, 1885 (13 of 1885) and the Indian Wireless Telegraphy Act, 1933 (17 of 1933) and, in particular, nothing in this Act shall affect any jurisdiction, powers and functions required to be exercised or performed by the Telegraph Authority in relation to any area falling within the jurisdiction of such Authority.”66. Since the Telegraph Authority, acting under the Telegraph Act and the Indian Wireless Telegraphy Act, is required to act in public interest, the jurisdiction of the said Authority is left untrammeled by the provisions of the TRAI Act. It can thus be seen that TRAI and the Telegraph Authority both act in public interest. The TRAI Act, the Telegraph Act and the Indian Wireless Telegraphy Act, being statutes in pari materia, form a Code, insofar as wireless telegraphy and broadcasting is concerned. | 0[ds]30. We are of the view that the provisions of the TRAI Act have to be viewed in the light of protection of the interests of both service providers and consumers. This being so, it is clear that no constricted meaning can be given to the provisions of this Act. It is important to remember that under Section 11(1)(a)(iv), one of the functions of the Authority, though recommendatory, is to facilitate competition and promote efficiency in the operation of telecommunication services (which includes broadcasting services) so as to facilitate growth in such services. What is also clear from Section 11(1)(b), is that terms and conditions of interconnectivity between different service providers have to be fixed, which necessarily includes terms that relate not only to carriage simpliciter as submitted by Dr. Singhvi, but to all terms and conditions of interconnectivity between broadcaster, MSO, Cable TV operator and the ultimate consumer, so as to ensure that the object of the Act is carried out, namely, that both broadcasters and consumers get a fair deal. Towards this end, Section 11(2) makes it clear that the Authority may, from time to time, notify the rates at which telecommunication services, including broadcasting services, within India and outside India, shall be provided under this Act. Dr. Singhvi argued that the literal language of thiswhich would undoubtedly bring in rates laid down in the Tariff Order, would have to be constricted by the language of the last part of the provision,the rates at which messages shall be transmitted to any country outsideWe are afraid that this is against basic canons of construction, as the expressionwould only refer to a part of what precedes the expression and cannot therefore constrict the part that has gone before. The plain literal language of Section 11(2) makes it clear that rates at which broadcasting services are offered within and outside India can be fixed by TRAI. It is clear therefore that when rates are fixed after several rounds of consultations between various service providers and consumers, looking to the interest of each, it is impossible to say that anyrights have been impinged upon. Shri Dwivedi is absolutely right in saying that at no stage is content of a TV channel sought to be regulated, and that pricing relating to TV channels laid down in the Regulation and Tariff Order is a balancing act between the rights of broadcasters and the interests of consumers, which we may hasten to add has not been impugned on the ground that any right or fundamental right is violated, but only on the ground that the Regulation as well as the Tariff Order are outside theof TRAI. Dr.argument on this score must therefore fail.It is only when TRAI issued a second consultation paper dated 4.5.2016 that Star India submitted its response in June, 2016 where it raised for the first time the issue relating to the Copyright Act as an afterthought. What is important to notice is that even in this response, Star India reiterated that discount caps should be provided for as this checks discriminatory behavior during negotiation and will facilitate designing of discount criteria based on intelligible differentia which will help serve the diverse needs of consumers. In a third response to the draft regulations and tariff order, Star India raised jurisdictional issues of TRAI.It can thus be seen that both the Regulation as well as the Tariff Order have been the subject matter of extensive discussions between TRAI, all stake holders and consumers, pursuant to which most of the suggestions given by the broadcasters themselves have been accepted and incorporated into the Regulation and the Tariff Order. The Explanatory Memorandum shows that the focus of the Authority has always been the provision of a level playing field to both broadcaster and subscriber. For example, when high discounts are offered for bouquets that are offered by the broadcasters, the effect is that subscribers are forced to take bouquets only, as thecarte rates of the pay channels that are found in these bouquets are much higher. This results in perverse pricing of bouquetsindividual pay channels. In the process, the public ends up paying for unwanted channels, thereby blocking newer and better TV channels and restrictingchoice. It is for this reason that discounts are capped. While doing so, however, full flexibility has been given to broadcasters to declare the prices of their pay channels on anbasis. The Authority has shown that it does not encroach upon the freedom of broadcasters to arrange their business as they choose. Also, when such discounts are limited, a subscriber can then be free to choosechannels of his choice. Thus, the flexibility of formation of a bouquet, i.e., the choice of channels to be included in the bouquet together with the content of such channels, is not touched by the Authority. It is only efforts aimed at thwarting competition and reducingcarte choice that are, therefore, being interfered with. Equally, when a ceiling of INR 19 on the maximum retail price of pay channels which can be provided as a part of a bouquet is fixed by the Authority, thefocus is to be fair to both the subscribers as well as the broadcasters. INR 19 is an improvement over the erstwhile ceiling of INR 15.12 fixed by the earlier regulation which nobody has challenged. To maintain the balance between theinterests, again the Authority makes it clear that broadcasters have complete freedom to price channels which do not form part of any bouquet and are offered only on ancarte basis. As market regulator, the Authority states that the impugned Regulation and Tariff Order are not written in stone but will be reviewed keeping a watch on the developments in the market. We are, therefore, clearly of the view that the Regulation and the Tariff Order have been made keeping the interests of the stakeholders and the consumers in mind and are intra vires the regulation power contained in Section 36 of the TRAI Act. Consequently, we agree with the conclusion of the learned Chief Justice and the third learned Judge of the Madras High Court that these writ petitions deserve to be dismissed.Shri Dwivedi is therefore right that the object of the Sports Act has nothing to do with the validity of the Regulation and Tariff Order made by TRAI under the TRAI Act. Content is referred to in the Sports Act only for the reason stated in the Objects and Reasons. Secondly, as has correctly been argued by Shri Dwivedi and as has been held by us above, the TRAI Act, as well as the Regulation and Tariff Order, do not in any manner affect the content of the TV channels that are broadcast by the broadcasters in these cases.A reading of the aforesaid provisions, according to the learned Senior Advocates for the appellants, makes it clear that broadcasters may, in fact, be the owners of the original copyright of a work – for example, if they themselves have produced a serial. They may also be the copyright owners of the broadcast of this serial which is a separate right under the Copyright Act which they are able to exploit, and if there is a rebroadcast of what has already been copyrighted, this again is protected by Chapter VIII of the Copyright Act. The argument, therefore, is that content that is carried by transmission from the broadcasters to the ultimate consumer is, therefore, regulated only by the Copyright Act and any royalties that can be charged for exploitation of the three rights as aforesaid are governed only by the Copyright Act. Further, the right to band themselves into a society is by virtue of Section 33, which mutatis mutandis applies to broadcasters alone. The tariff, therefore, that may be charged under Section 33A of the Copyright Act read with Rule 56 of the Copyright Rules is nothing but compensation that is payable to broadcasters for parting with their copyright in the manner indicated above. This being the case, when TRAI fixes rates and/or interferes with content, it is trespassing into the exclusive domain set out by Parliament under the Copyright Act. Since the TRAI Act and the Copyright Act, both being Acts passed by Parliament, have to be harmonised, such harmony can only be maintained if TRAI is kept out altogether from the domain covered by the Copyright Act.The picture that, therefore, emerges is that copyright is meant to protect the proprietary interest of the owner, which in the present case is a broadcaster, in thei.e. the original work, its broadcast and/or itsby him. The interest of the end user or consumer is not the focus of the Copyright Act at all. On the other hand, the TRAI Act has to focus on broadcasting services provided by the broadcaster that impact the ultimate consumer. The focus, therefore, of TRAI is that of a regulatory authority, which looks to the interest of both broadcaster and subscriber so as to provide a level playing field for both in which regulations can be laid down which affect the manner and carriage of broadcast to the ultimate consumers. Once the relative scope of both the enactments is understood as above, there can be no difficulty in stating that the two Acts operate in different fields. We do not find on a reading of the impugned Regulation as well as the Tariff Order made that TRAI has transgressed into copyright land. This is for the reason, as has been stated hereinabove, that regulations which allegedly impact packaging TV channels, pricing of TV channels and theright to arrange his business as he pleases, all have to be viewed with the lens of a regulatory authority, which is to provide a level playing field between broadcaster and subscriber. We have also noted how the broadcaster is free to provide whatever content he chooses for the TV channels that he chooses to transmit to the ultimate consumer. We have also noted how the broadcaster is free to arrange pricing of his TV channels so long as they are nondiscriminatory and do not otherwise have the effect of unreasonably restricting the choice of a subscriber to choose bouquet orchannels as has been held hereinabove. We are satisfied that the impugned Regulation and Tariff Order have been passed by a regulatory authority after applying its mind to the objections of the various stakeholders involved after which the Regulation and Tariff Order have been laid down which have, by and large, been initially acceded to by the broadcasters themselves. In this view of the matter, we are of the view that the Copyright Act will operate within its own sphere, the broadcaster being given full flexibility to either individually or in the form of a society charge royalty or compensation for the three kinds of copyright mentioned hereinabove. TRAI, while exercising its regulatory functions under the TRAI Act, does not at all, in substance, impinge upon any of these rights, but merely acts, as has been stated hereinabove, as a regulator, in the public interest, of broadcasting services provided by broadcasters and availed of by the ultimate consumer.65. As Dr. Singhvi has repeatedly stressed that fixation of rates under Section 11(2) would directly impinge upon compensation payable for copyright to the broadcasters, it is important to note that both the Copyright Act as well as the TRAI Act are central enactments which do not expressly provide that the one overrides the other. In this situation, a basic principle of interpretation of statutes is that both Acts be harmonized in the event of any clash/conflict between the two so that both may be given effect to.Since the Telegraph Authority, acting under the Telegraph Act and the Indian Wireless Telegraphy Act, is required to act in public interest, the jurisdiction of the said Authority is left untrammeled by the provisions of the TRAI Act. It can thus be seen that TRAI and the Telegraph Authority both act in public interest. The TRAI Act, the Telegraph Act and the Indian Wireless Telegraphy Act, being statutes in pari materia, form a Code, insofar as wireless telegraphy and broadcasting is concerned. | 0 | 29,293 | 2,212 | ### Instruction:
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by following the rules. It shall publish the date of coming into of the revised Tariff Scheme at least before two months in advance and the same shall be posted on its website.”62. At this juncture, it is of a little importance to compare and contrast Section 2(dd) of the Copyright Act with “broadcasting services” as defined in the impugned Regulation and Tariff Order. By Clause 2(j) of the impugned Regulation, “broadcasting services” is defined as follows:"2(j) “broadcasting services” means the dissemination of any form of communication like signs, signals, writing, pictures, images and sounds of all kinds by transmission of electro-magnetic waves through space or through cables intended to be received by the general public either directly or indirectly and all its grammatical variations and cognate expressions shall be construed accordingly;”63. When the definitions of “broadcast” in Section 2(dd) of the Copyright Act and of “broadcasting services” in Clause 2(j) of the impugned Regulation are compared, what is clear is that the words “intended to be received by the general public either directly or indirectly” are completely missing from the definition of “broadcast” contained in the Copyright Act. Also, Section 52(1)(b) of the Copyright Act indicates that transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public is not an act that would constitute infringement of copyright. Section 52(1)(b) reads as follows:“52. Certain acts not to be infringement of copright.- (1) The following acts shall no constitute an infringement of copyright, namely:-xxx xxx xxx(b) the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public;”64. The picture that, therefore, emerges is that copyright is meant to protect the proprietary interest of the owner, which in the present case is a broadcaster, in the “work”, i.e. the original work, its broadcast and/or its re-broadcast by him. The interest of the end user or consumer is not the focus of the Copyright Act at all. On the other hand, the TRAI Act has to focus on broadcasting services provided by the broadcaster that impact the ultimate consumer. The focus, therefore, of TRAI is that of a regulatory authority, which looks to the interest of both broadcaster and subscriber so as to provide a level playing field for both in which regulations can be laid down which affect the manner and carriage of broadcast to the ultimate consumers. Once the relative scope of both the enactments is understood as above, there can be no difficulty in stating that the two Acts operate in different fields. We do not find on a reading of the impugned Regulation as well as the Tariff Order made that TRAI has transgressed into copyright land. This is for the reason, as has been stated hereinabove, that regulations which allegedly impact packaging TV channels, pricing of TV channels and the broadcaster’s right to arrange his business as he pleases, all have to be viewed with the lens of a regulatory authority, which is to provide a level playing field between broadcaster and subscriber. We have also noted how the broadcaster is free to provide whatever content he chooses for the TV channels that he chooses to transmit to the ultimate consumer. We have also noted how the broadcaster is free to arrange pricing of his TV channels so long as they are non- discriminatory and do not otherwise have the effect of unreasonably restricting the choice of a subscriber to choose bouquet or a-la-carte channels as has been held hereinabove. We are satisfied that the impugned Regulation and Tariff Order have been passed by a regulatory authority after applying its mind to the objections of the various stakeholders involved after which the Regulation and Tariff Order have been laid down which have, by and large, been initially acceded to by the broadcasters themselves. In this view of the matter, we are of the view that the Copyright Act will operate within its own sphere, the broadcaster being given full flexibility to either individually or in the form of a society charge royalty or compensation for the three kinds of copyright mentioned hereinabove. TRAI, while exercising its regulatory functions under the TRAI Act, does not at all, in substance, impinge upon any of these rights, but merely acts, as has been stated hereinabove, as a regulator, in the public interest, of broadcasting services provided by broadcasters and availed of by the ultimate consumer.65. As Dr. Singhvi has repeatedly stressed that fixation of rates under Section 11(2) would directly impinge upon compensation payable for copyright to the broadcasters, it is important to note that both the Copyright Act as well as the TRAI Act are central enactments which do not expressly provide that the one overrides the other. In this situation, a basic principle of interpretation of statutes is that both Acts be harmonized in the event of any clash/conflict between the two so that both may be given effect to. In fact, Section 38 of the TRAI Act reads as under:-“38. Application of certain laws. – The provisions of this Act shall be in addition to the provisions of the Indian Telegraph Act, 1885 (13 of 1885) and the Indian Wireless Telegraphy Act, 1933 (17 of 1933) and, in particular, nothing in this Act shall affect any jurisdiction, powers and functions required to be exercised or performed by the Telegraph Authority in relation to any area falling within the jurisdiction of such Authority.”66. Since the Telegraph Authority, acting under the Telegraph Act and the Indian Wireless Telegraphy Act, is required to act in public interest, the jurisdiction of the said Authority is left untrammeled by the provisions of the TRAI Act. It can thus be seen that TRAI and the Telegraph Authority both act in public interest. The TRAI Act, the Telegraph Act and the Indian Wireless Telegraphy Act, being statutes in pari materia, form a Code, insofar as wireless telegraphy and broadcasting is concerned.
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these writ petitions deserve to be dismissed.Shri Dwivedi is therefore right that the object of the Sports Act has nothing to do with the validity of the Regulation and Tariff Order made by TRAI under the TRAI Act. Content is referred to in the Sports Act only for the reason stated in the Objects and Reasons. Secondly, as has correctly been argued by Shri Dwivedi and as has been held by us above, the TRAI Act, as well as the Regulation and Tariff Order, do not in any manner affect the content of the TV channels that are broadcast by the broadcasters in these cases.A reading of the aforesaid provisions, according to the learned Senior Advocates for the appellants, makes it clear that broadcasters may, in fact, be the owners of the original copyright of a work – for example, if they themselves have produced a serial. They may also be the copyright owners of the broadcast of this serial which is a separate right under the Copyright Act which they are able to exploit, and if there is a rebroadcast of what has already been copyrighted, this again is protected by Chapter VIII of the Copyright Act. The argument, therefore, is that content that is carried by transmission from the broadcasters to the ultimate consumer is, therefore, regulated only by the Copyright Act and any royalties that can be charged for exploitation of the three rights as aforesaid are governed only by the Copyright Act. Further, the right to band themselves into a society is by virtue of Section 33, which mutatis mutandis applies to broadcasters alone. The tariff, therefore, that may be charged under Section 33A of the Copyright Act read with Rule 56 of the Copyright Rules is nothing but compensation that is payable to broadcasters for parting with their copyright in the manner indicated above. This being the case, when TRAI fixes rates and/or interferes with content, it is trespassing into the exclusive domain set out by Parliament under the Copyright Act. Since the TRAI Act and the Copyright Act, both being Acts passed by Parliament, have to be harmonised, such harmony can only be maintained if TRAI is kept out altogether from the domain covered by the Copyright Act.The picture that, therefore, emerges is that copyright is meant to protect the proprietary interest of the owner, which in the present case is a broadcaster, in thei.e. the original work, its broadcast and/or itsby him. The interest of the end user or consumer is not the focus of the Copyright Act at all. On the other hand, the TRAI Act has to focus on broadcasting services provided by the broadcaster that impact the ultimate consumer. The focus, therefore, of TRAI is that of a regulatory authority, which looks to the interest of both broadcaster and subscriber so as to provide a level playing field for both in which regulations can be laid down which affect the manner and carriage of broadcast to the ultimate consumers. Once the relative scope of both the enactments is understood as above, there can be no difficulty in stating that the two Acts operate in different fields. We do not find on a reading of the impugned Regulation as well as the Tariff Order made that TRAI has transgressed into copyright land. This is for the reason, as has been stated hereinabove, that regulations which allegedly impact packaging TV channels, pricing of TV channels and theright to arrange his business as he pleases, all have to be viewed with the lens of a regulatory authority, which is to provide a level playing field between broadcaster and subscriber. We have also noted how the broadcaster is free to provide whatever content he chooses for the TV channels that he chooses to transmit to the ultimate consumer. We have also noted how the broadcaster is free to arrange pricing of his TV channels so long as they are nondiscriminatory and do not otherwise have the effect of unreasonably restricting the choice of a subscriber to choose bouquet orchannels as has been held hereinabove. We are satisfied that the impugned Regulation and Tariff Order have been passed by a regulatory authority after applying its mind to the objections of the various stakeholders involved after which the Regulation and Tariff Order have been laid down which have, by and large, been initially acceded to by the broadcasters themselves. In this view of the matter, we are of the view that the Copyright Act will operate within its own sphere, the broadcaster being given full flexibility to either individually or in the form of a society charge royalty or compensation for the three kinds of copyright mentioned hereinabove. TRAI, while exercising its regulatory functions under the TRAI Act, does not at all, in substance, impinge upon any of these rights, but merely acts, as has been stated hereinabove, as a regulator, in the public interest, of broadcasting services provided by broadcasters and availed of by the ultimate consumer.65. As Dr. Singhvi has repeatedly stressed that fixation of rates under Section 11(2) would directly impinge upon compensation payable for copyright to the broadcasters, it is important to note that both the Copyright Act as well as the TRAI Act are central enactments which do not expressly provide that the one overrides the other. In this situation, a basic principle of interpretation of statutes is that both Acts be harmonized in the event of any clash/conflict between the two so that both may be given effect to.Since the Telegraph Authority, acting under the Telegraph Act and the Indian Wireless Telegraphy Act, is required to act in public interest, the jurisdiction of the said Authority is left untrammeled by the provisions of the TRAI Act. It can thus be seen that TRAI and the Telegraph Authority both act in public interest. The TRAI Act, the Telegraph Act and the Indian Wireless Telegraphy Act, being statutes in pari materia, form a Code, insofar as wireless telegraphy and broadcasting is concerned.
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Lal Chand (Dead) By L.Rs. & Ors Vs. Radha Kishan | against whom a decree for eviction is passed is a tenant for the purposes of the Delhi Rent Control Act but whether he is a tenant for the purposes of s. 19 of the Slum Clearance Act. Lakhmi Chands (supra) case does not deal with this problem at all.Since the respondent had not obtained permission of the competent authority for instituting the present suit for obtaining a decree for eviction of Lal Chand from a building situated in the slum area and since Lal Chand must be held to be a tenant for the purposes of s. 19(1) (a) it must follow that the suit is incompetent and cannot be entertained.The suit is also barred under s. 37A of the Slum Clearance Act which reads thus:"37A. Bar of jurisdiction.---Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction in respect of any matter which the competent authority or any other person is empowered by or under this Act, to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under tiffs Act."12. The competent authority is empowered under s. 19( 3 ) to determine the question whether permission should be granted or refused for instituting a suit for obtaining a decree or order for the eviction of a tenant from any building in a slum area. Consequently, no civil court can have jurisdic tion in respect of that matter, namely, in respect of the question whether a tenant of a building in a slum area should or should not be permitted to be evicted therefrom. As a result of the combined operation of s. 19(3) and s. 37A of the Slum Clearance Act, that jurisdiction is exclusively vested in the competent authority and the jurisdiction in that behalf of civil courts is expressly taken away.13. Only one more aspect of the matter needs is to be ad-verted to. The respondent after obtaining a decree for eviction against Lal Chand and his alleged sub tenants applied for permission of the competent authority to execute that degree. Permission was granted to him to execute the decree in respect only of the two rooms on the second floor and in pursuance of that permission he obtained pos session of those two rooms. We are unable to , understand how after working out his remedy under the Delhi Rent Control Act as modified by the Slum Clearance Act, it is competent to the respondent to bring a fresh suit for evict ing the appellants from the premises on the ground floor. The authorities under the Slum Clearance Act who are exclu sively invested with the power to determine whether a decree for eviction should be permitted to be executed and, if so, to what extent, had finally decided that question, refusing to allow the respondent to execute the decree in respect of the ground floor premises. By the present suit, the respondent is once again asking for the relief which was included in the larger relief sought by him in the application filed under the Slum Clearance Act and which was expressly denied to him. In the circumstances, the present suit is also barred by the principle of res judicata. The fact that s. 11 of the Code of Civil Procedure cannot apply on its terms, the earlier proceeding before the competent authority not being a suit, is no answer to the extension Of the principle underlying-that section to the instant case. Section 11, it is long since settled, is not exhaustive and the principle which motivates that sect ion can be extended to cases which do not fall strictly within the letter of the law. The issues involved in the two proceedings are identical, those issues arise as between the same parties and thirdly, the issue now sough t to be raised was decided finally by a competent quasi judicial tribunal. The principle of res judicata is con ceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded on equity, justice and good con science which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue. Were it permissible to bring suits of the present nature, the beneficial jurisdiction conferred on the competent authority by the Slum Clearance Act would become illusory and meaningless for, whether the competent authori ty grants or refuses permission to execute a decree for eviction, it would always be open to the landlord to enforce the ejectment decree by filing a substantiative suit for possession. Verily, the respondent is executing the evic tion decree by installments, now under the garb of a suit. Apart from the fact that the suit is barred on account of principles analogous to res judicata, it is plainly in violation of the injunction contained in s. 19 (1)(b) of the Slum Clearance Act, if regard is to be had to the substance and not for the form of the proceedings. Lal Chands widow died after the decision of the second appeal by the High Court and before the filing of this appeal. Learned counsel for the respondent wants to utilise that event to highlight his argument that the cause of action cannot survive at least after her death, in view by the amendment made to s. 2(1) of the Delhi Rent Control Act by Amending Act 18 of 1976. We cannot accept this argument either. The suit filed by the respondent being incompetent and the Civil Court not having jurisdiction to entertain it, the decree passed by it is non-est. The nullity of that decree can be set up at least by Kesho Ram and Jhangi Ram who are entitled to defend and protect their possession by invoking the provisions of the Slum Clearance Act.14. | 1[ds]The High Court seems to have been impressed by the contention that the suit was not maintainable by reason of the provisions of s. 37A of the Slum Clearance Act, but it thought that Lal Chand having died there was no one before the Court who could legitimately contend that the suit was not maintainable. As stated before this was an erroneous approach to the problem, which makes it necessary for us to examine the merits of the contention as regards the maintainability of theare unable to appreciate how the judgment in that ease supports the contention of the respondent. All that was decided therein was that a person against whom an order for eviction is passed cannot be a tenant within the meaning of the Delhi Rent Control Act and that the definition of the word tenant as contained in that Act would not be affected by anything contained in s. 19 of the Slum Clearance Act. The question which arose in that case was whether s. 50 of the Delhi Rent Control Act barred the jurisdiction of the civil court to entertain a suit in relation to any premises to which that Act applied, for eviction of a tenant therefrom. Not only that no question arose in that case as to whether the definition of tenant as contained in the Delhi Rent Control Act should be extended to the Slum Clearance Act, but the Court observed expressly that: "No question as to what the rights of a tenant against whom a decree in ejectment has been passed in view of Section 19 of the Slum Areas Act are, arises in this appeal", and that the Court was not concerned in the appeal before it "with any question as to the protection given by the Slum Areas Act. to tenants" .... The question before us is not whether a person against whom a decree for eviction is passed is a tenant for the purposes of the Delhi Rent Control Act but whether he is a tenant for the purposes of s. 19 of the Slum Clearance Act. Lakhmi Chands (supra) case does not deal with this problem at all.Since the respondent had not obtained permission of the competent authority for instituting the present suit for obtaining a decree for eviction of Lal Chand from a building situated in the slum area and since Lal Chand must be held to be a tenant for the purposes of s. 19(1) (a) it must follow that the suit is incompetent and cannot beone more aspect of the matter needs is to be ad-verted to. The respondent after obtaining a decree for eviction against Lal Chand and his alleged sub tenants applied for permission of the competent authority to execute that degree. Permission was granted to him to execute the decree in respect only of the two rooms on the second floor and in pursuance of that permission he obtained pos session of those two rooms. We are unable to , understand how after working out his remedy under the Delhi Rent Control Act as modified by the Slum Clearance Act, it is competent to the respondent to bring a fresh suit for evict ing the appellants from the premises on the ground floor. The authorities under the Slum Clearance Act who are exclu sively invested with the power to determine whether a decree for eviction should be permitted to be executed and, if so, to what extent, had finally decided that question, refusing to allow the respondent to execute the decree in respect of the ground floor premises. By the present suit, the respondent is once again asking for the relief which was included in the larger relief sought by him in the application filed under the Slum Clearance Act and which was expressly denied to him. In the circumstances, the present suit is also barred by the principle of res judicata. The fact that s. 11 of theCode of Civil Procedure cannot apply on its terms, the earlier proceeding before the competent authority not being a suit, is no answer to the extension Of the principle underlying-that section to the instant case. Section 11, it is long since settled, is not exhaustive and the principle which motivates that sect ion can be extended to cases which do not fall strictly within the letter of the law. The issues involved in the two proceedings are identical, those issues arise as between the same parties and thirdly, the issue now sough t to be raised was decided finally by a competent quasi judicial tribunal. The principle of res judicata is con ceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded on equity, justice and good con science which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue. Were it permissible to bring suits of the present nature, the beneficial jurisdiction conferred on the competent authority by the Slum Clearance Act would become illusory and meaningless for, whether the competent authori ty grants or refuses permission to execute a decree for eviction, it would always be open to the landlord to enforce the ejectment decree by filing a substantiative suit for possession. Verily, the respondent is executing the evic tion decree by installments, now under the garb of a suit. Apart from the fact that the suit is barred on account of principles analogous to res judicata, it is plainly in violation of the injunction contained in s. 19 (1)(b) of the Slum Clearance Act, if regard is to be had to the substance and not for the form of the proceedings. Lal Chands widow died after the decision of the second appeal by the High Court and before the filing of this appeal. Learned counsel for the respondent wants to utilise that event to highlight his argument that the cause of action cannot survive at least after her death, in view by the amendment made to s. 2(1) of the Delhi Rent Control Act by Amending Act 18 of 1976. We cannot accept this argument either. The suit filed by the respondent being incompetent and the Civil Court not having jurisdiction to entertain it, the decree passed by it is non-est. The nullity of that decree can be set up at least by Kesho Ram and Jhangi Ram who are entitled to defend and protect their possession by invoking the provisions of the Slum Clearance Act. | 1 | 5,057 | 1,184 | ### 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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against whom a decree for eviction is passed is a tenant for the purposes of the Delhi Rent Control Act but whether he is a tenant for the purposes of s. 19 of the Slum Clearance Act. Lakhmi Chands (supra) case does not deal with this problem at all.Since the respondent had not obtained permission of the competent authority for instituting the present suit for obtaining a decree for eviction of Lal Chand from a building situated in the slum area and since Lal Chand must be held to be a tenant for the purposes of s. 19(1) (a) it must follow that the suit is incompetent and cannot be entertained.The suit is also barred under s. 37A of the Slum Clearance Act which reads thus:"37A. Bar of jurisdiction.---Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction in respect of any matter which the competent authority or any other person is empowered by or under this Act, to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under tiffs Act."12. The competent authority is empowered under s. 19( 3 ) to determine the question whether permission should be granted or refused for instituting a suit for obtaining a decree or order for the eviction of a tenant from any building in a slum area. Consequently, no civil court can have jurisdic tion in respect of that matter, namely, in respect of the question whether a tenant of a building in a slum area should or should not be permitted to be evicted therefrom. As a result of the combined operation of s. 19(3) and s. 37A of the Slum Clearance Act, that jurisdiction is exclusively vested in the competent authority and the jurisdiction in that behalf of civil courts is expressly taken away.13. Only one more aspect of the matter needs is to be ad-verted to. The respondent after obtaining a decree for eviction against Lal Chand and his alleged sub tenants applied for permission of the competent authority to execute that degree. Permission was granted to him to execute the decree in respect only of the two rooms on the second floor and in pursuance of that permission he obtained pos session of those two rooms. We are unable to , understand how after working out his remedy under the Delhi Rent Control Act as modified by the Slum Clearance Act, it is competent to the respondent to bring a fresh suit for evict ing the appellants from the premises on the ground floor. The authorities under the Slum Clearance Act who are exclu sively invested with the power to determine whether a decree for eviction should be permitted to be executed and, if so, to what extent, had finally decided that question, refusing to allow the respondent to execute the decree in respect of the ground floor premises. By the present suit, the respondent is once again asking for the relief which was included in the larger relief sought by him in the application filed under the Slum Clearance Act and which was expressly denied to him. In the circumstances, the present suit is also barred by the principle of res judicata. The fact that s. 11 of the Code of Civil Procedure cannot apply on its terms, the earlier proceeding before the competent authority not being a suit, is no answer to the extension Of the principle underlying-that section to the instant case. Section 11, it is long since settled, is not exhaustive and the principle which motivates that sect ion can be extended to cases which do not fall strictly within the letter of the law. The issues involved in the two proceedings are identical, those issues arise as between the same parties and thirdly, the issue now sough t to be raised was decided finally by a competent quasi judicial tribunal. The principle of res judicata is con ceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded on equity, justice and good con science which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue. Were it permissible to bring suits of the present nature, the beneficial jurisdiction conferred on the competent authority by the Slum Clearance Act would become illusory and meaningless for, whether the competent authori ty grants or refuses permission to execute a decree for eviction, it would always be open to the landlord to enforce the ejectment decree by filing a substantiative suit for possession. Verily, the respondent is executing the evic tion decree by installments, now under the garb of a suit. Apart from the fact that the suit is barred on account of principles analogous to res judicata, it is plainly in violation of the injunction contained in s. 19 (1)(b) of the Slum Clearance Act, if regard is to be had to the substance and not for the form of the proceedings. Lal Chands widow died after the decision of the second appeal by the High Court and before the filing of this appeal. Learned counsel for the respondent wants to utilise that event to highlight his argument that the cause of action cannot survive at least after her death, in view by the amendment made to s. 2(1) of the Delhi Rent Control Act by Amending Act 18 of 1976. We cannot accept this argument either. The suit filed by the respondent being incompetent and the Civil Court not having jurisdiction to entertain it, the decree passed by it is non-est. The nullity of that decree can be set up at least by Kesho Ram and Jhangi Ram who are entitled to defend and protect their possession by invoking the provisions of the Slum Clearance Act.14.
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the respondent. All that was decided therein was that a person against whom an order for eviction is passed cannot be a tenant within the meaning of the Delhi Rent Control Act and that the definition of the word tenant as contained in that Act would not be affected by anything contained in s. 19 of the Slum Clearance Act. The question which arose in that case was whether s. 50 of the Delhi Rent Control Act barred the jurisdiction of the civil court to entertain a suit in relation to any premises to which that Act applied, for eviction of a tenant therefrom. Not only that no question arose in that case as to whether the definition of tenant as contained in the Delhi Rent Control Act should be extended to the Slum Clearance Act, but the Court observed expressly that: "No question as to what the rights of a tenant against whom a decree in ejectment has been passed in view of Section 19 of the Slum Areas Act are, arises in this appeal", and that the Court was not concerned in the appeal before it "with any question as to the protection given by the Slum Areas Act. to tenants" .... The question before us is not whether a person against whom a decree for eviction is passed is a tenant for the purposes of the Delhi Rent Control Act but whether he is a tenant for the purposes of s. 19 of the Slum Clearance Act. Lakhmi Chands (supra) case does not deal with this problem at all.Since the respondent had not obtained permission of the competent authority for instituting the present suit for obtaining a decree for eviction of Lal Chand from a building situated in the slum area and since Lal Chand must be held to be a tenant for the purposes of s. 19(1) (a) it must follow that the suit is incompetent and cannot beone more aspect of the matter needs is to be ad-verted to. The respondent after obtaining a decree for eviction against Lal Chand and his alleged sub tenants applied for permission of the competent authority to execute that degree. Permission was granted to him to execute the decree in respect only of the two rooms on the second floor and in pursuance of that permission he obtained pos session of those two rooms. We are unable to , understand how after working out his remedy under the Delhi Rent Control Act as modified by the Slum Clearance Act, it is competent to the respondent to bring a fresh suit for evict ing the appellants from the premises on the ground floor. The authorities under the Slum Clearance Act who are exclu sively invested with the power to determine whether a decree for eviction should be permitted to be executed and, if so, to what extent, had finally decided that question, refusing to allow the respondent to execute the decree in respect of the ground floor premises. By the present suit, the respondent is once again asking for the relief which was included in the larger relief sought by him in the application filed under the Slum Clearance Act and which was expressly denied to him. In the circumstances, the present suit is also barred by the principle of res judicata. The fact that s. 11 of theCode of Civil Procedure cannot apply on its terms, the earlier proceeding before the competent authority not being a suit, is no answer to the extension Of the principle underlying-that section to the instant case. Section 11, it is long since settled, is not exhaustive and the principle which motivates that sect ion can be extended to cases which do not fall strictly within the letter of the law. The issues involved in the two proceedings are identical, those issues arise as between the same parties and thirdly, the issue now sough t to be raised was decided finally by a competent quasi judicial tribunal. The principle of res judicata is con ceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded on equity, justice and good con science which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue. Were it permissible to bring suits of the present nature, the beneficial jurisdiction conferred on the competent authority by the Slum Clearance Act would become illusory and meaningless for, whether the competent authori ty grants or refuses permission to execute a decree for eviction, it would always be open to the landlord to enforce the ejectment decree by filing a substantiative suit for possession. Verily, the respondent is executing the evic tion decree by installments, now under the garb of a suit. Apart from the fact that the suit is barred on account of principles analogous to res judicata, it is plainly in violation of the injunction contained in s. 19 (1)(b) of the Slum Clearance Act, if regard is to be had to the substance and not for the form of the proceedings. Lal Chands widow died after the decision of the second appeal by the High Court and before the filing of this appeal. Learned counsel for the respondent wants to utilise that event to highlight his argument that the cause of action cannot survive at least after her death, in view by the amendment made to s. 2(1) of the Delhi Rent Control Act by Amending Act 18 of 1976. We cannot accept this argument either. The suit filed by the respondent being incompetent and the Civil Court not having jurisdiction to entertain it, the decree passed by it is non-est. The nullity of that decree can be set up at least by Kesho Ram and Jhangi Ram who are entitled to defend and protect their possession by invoking the provisions of the Slum Clearance Act.
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M/s Ashoka Smokeless Coal Industries Pvt. Ltd. & Others Vs. Union of India & Others | and directs that continued supply should be made to the petitioners on the basis of the original notified price. Mr. Soli J. Sorabjee, learned Senior Counsel reminded the Court that Coal India Ltd. and its subsidiaries cannot run their business on securities or bank guarantees and in the interests of all concerned, it would be just and proper to direct the petitioners to make payment of a part of the amount claimed in excess by Coal India Ltd. and its subsidiaries and to furnish security for the balance, with an undertaking to pay the money if and when the writ petitions filed by the petitioners are decided against them. He and learned Solicitor General submitted that the Coal Companies are prepared to give an undertaking to this Court that they would refund the amount to the petitioners with interest on the amount as fixed by this Court in case the petitioners ultimately succeed in their challenge. 5. Messers K.K. Venugopal, M.L. Verma, Rohington Nariman, learned Senior counsel and host of other counsel appearing for the petitioners resist the prayer by pointing out that the interim order was passed after hearing both sides and there was no justification in varying or modifying the same. Learned counsel submit that the statements as directed by this Court on 28.10.2005 had been filed by the various Undertakings and it would not be correct to say that the order had not been complied with. It was also not correct to say that the net worth of the companies was not enough and by supplying coal without collecting the difference, Coal India Ltd. and its subsidiaries would be running a great commercial risk. 6. We have given our anxious thought to the rival submissions. Most of the High Courts have passed orders directing the furnishing of bank guarantee and some of the High Courts have passed orders directing the furnishing of security for the difference in prices before claiming the supply of coal based on the coal linkage. Learned counsel for the petitioners pointed out that as the price of the commodity is paid in advance, substantial amounts belonging to the petitioners herein remain in the hands of Coal India Ltd. and its subsidiaries to be adjusted against the price payable by the petitioners for the coal to be lifted and there was no risk involved in continuing to supply coal to the petitioners on the basis of the individual coal linkage. It is pointed out on behalf of the Coal India Ltd. that the amount paid is to be adjusted towards the supply of coal to be made and it gets dwindled every time when a supply is made and that would be inadequate security or protection to Coal India Ltd. and its subsidiaries.7. Keeping in mind the interests of both sides and taking note of the facts and circumstances as a whole, we think that it would be appropriate to direct the petitioners to pay a part of the enhanced price while at the same time furnish security for the balance that might become payable in case their challenge to the E-auction scheme is repelled. The rights of the petitioners claiming themselves to be small scale industries can be protected by directing them to furnish security for a major part of the enhanced price and accepting the undertaking given on behalf of Coal India Ltd. and its subsidiaries to refund whatever had been paid in excess with interest thereon in case the petitioners succeed in their challenge to the E-auction system introduced by the Coal Companies. Since there is substance in the argument that mere furnishing of security or bank guarantee would not enable Coal India Ltd. and its subsidiaries to carry on their business which it was necessary to do in the interests of the whole Nation, we feel that a direction to pay at least a part of the enhanced price by the petitioners could be justified in the circumstances.8. It is pointed out that in respect of some entities, coal was being supplied at the notified price enhanced by 20% thereof and this would be a guide for fixing the percentage of the excess price to be paid by the petitioners. It is pointed out that enhancement of the notified price only by 20% was in respect of very small consumers and in respect of Central and State Agencies and that cannot form the basis for supply of coal to the petitioners herein having a coal linkage with the coal companies. Taking note of the circumstances as a whole we feel that it would be just and proper to direct the petitioner companies/firms, having coal linkage, to pay in addition to the notified price, 33 1/3 % of the enhanced price, each time they claim supply of coal to them based on the linkage and by furnishing security for the balance 66 2/3% of the enhanced price with an undertaking filed in this Court that the said part of the price will also be paid within 6 weeks of the decision of this Court in the writ petitions in case the writ petitions are decided against the petitioners. To protect the interest of the petitioners and to ensure that no permanent harm is caused to them we also think it proper to record the undertaking given on behalf of the Coal India Ltd. and its subsidiaries that in case this Court upholds the challenge made by the petitioners and allows the writ petitions filed by them, the enhanced price of 33 1/3% now to be paid by the petitioners will be refunded to the petitioners within 6 weeks of the judgment of this Court with interest thereon at 12% per annum from the date of payment till the date of return to the concerned petitioner.9. There is a complaint on behalf of the petitioners that coal was not being supplied in spite of interim orders passed by this Court earlier. Of course, this submission is disputed by counsel for the respondents. | 1[ds]6. We have given our anxious thought to the rival submissions. Most of the High Courts have passed orders directing the furnishing of bank guarantee and some of the High Courts have passed orders directing the furnishing of security for the difference in prices before claiming the supply of coal based on the coal linkage. Learned counsel for the petitioners pointed out that as the price of the commodity is paid in advance, substantial amounts belonging to the petitioners herein remain in the hands of Coal India Ltd. and its subsidiaries to be adjusted against the price payable by the petitioners for the coal to be lifted and there was no risk involved in continuing to supply coal to the petitioners on the basis of the individual coal linkage. It is pointed out on behalf of the Coal India Ltd. that the amount paid is to be adjusted towards the supply of coal to be made and it gets dwindled every time when a supply is made and that would be inadequate security or protection to Coal India Ltd. and its subsidiaries.7. Keeping in mind the interests of both sides and taking note of the facts and circumstances as a whole, we think that it would be appropriate to direct the petitioners to pay a part of the enhanced price while at the same time furnish security for the balance that might become payable in case their challenge to the E-auction scheme is repelled. The rights of the petitioners claiming themselves to be small scale industries can be protected by directing them to furnish security for a major part of the enhanced price and accepting the undertaking given on behalf of Coal India Ltd. and its subsidiaries to refund whatever had been paid in excess with interest thereon in case the petitioners succeed in their challenge to the E-auction system introduced by the Coal Companies. Since there is substance in the argument that mere furnishing of security or bank guarantee would not enable Coal India Ltd. and its subsidiaries to carry on their business which it was necessary to do in the interests of the whole Nation, we feel that a direction to pay at least a part of the enhanced price by the petitioners could be justified in the circumstances.8. It is pointed out that in respect of some entities, coal was being supplied at the notified price enhanced by 20% thereof and this would be a guide for fixing the percentage of the excess price to be paid by the petitioners. It is pointed out that enhancement of the notified price only by 20% was in respect of very small consumers and in respect of Central and State Agencies and that cannot form the basis for supply of coal to the petitioners herein having a coal linkage with the coal companies. Taking note of the circumstances as a whole we feel that it would be just and proper to direct the petitioner companies/firms, having coal linkage, to pay in addition to the notified price, 33 1/3 % of the enhanced price, each time they claim supply of coal to them based on the linkage and by furnishing security for the balance 66 2/3% of the enhanced price with an undertaking filed in this Court that the said part of the price will also be paid within 6 weeks of the decision of this Court in the writ petitions in case the writ petitions are decided against the petitioners. To protect the interest of the petitioners and to ensure that no permanent harm is caused to them we also think it proper to record the undertaking given on behalf of the Coal India Ltd. and its subsidiaries that in case this Court upholds the challenge made by the petitioners and allows the writ petitions filed by them, the enhanced price of 33 1/3% now to be paid by the petitioners will be refunded to the petitioners within 6 weeks of the judgment of this Court with interest thereon at 12% per annum from the date of payment till the date of return to the concerned petitioner.9. There is a complaint on behalf of the petitioners that coal was not being supplied in spite of interim orders passed by this Court earlier. Of course, this submission is disputed by counsel for the respondents. | 1 | 1,788 | 757 | ### 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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and directs that continued supply should be made to the petitioners on the basis of the original notified price. Mr. Soli J. Sorabjee, learned Senior Counsel reminded the Court that Coal India Ltd. and its subsidiaries cannot run their business on securities or bank guarantees and in the interests of all concerned, it would be just and proper to direct the petitioners to make payment of a part of the amount claimed in excess by Coal India Ltd. and its subsidiaries and to furnish security for the balance, with an undertaking to pay the money if and when the writ petitions filed by the petitioners are decided against them. He and learned Solicitor General submitted that the Coal Companies are prepared to give an undertaking to this Court that they would refund the amount to the petitioners with interest on the amount as fixed by this Court in case the petitioners ultimately succeed in their challenge. 5. Messers K.K. Venugopal, M.L. Verma, Rohington Nariman, learned Senior counsel and host of other counsel appearing for the petitioners resist the prayer by pointing out that the interim order was passed after hearing both sides and there was no justification in varying or modifying the same. Learned counsel submit that the statements as directed by this Court on 28.10.2005 had been filed by the various Undertakings and it would not be correct to say that the order had not been complied with. It was also not correct to say that the net worth of the companies was not enough and by supplying coal without collecting the difference, Coal India Ltd. and its subsidiaries would be running a great commercial risk. 6. We have given our anxious thought to the rival submissions. Most of the High Courts have passed orders directing the furnishing of bank guarantee and some of the High Courts have passed orders directing the furnishing of security for the difference in prices before claiming the supply of coal based on the coal linkage. Learned counsel for the petitioners pointed out that as the price of the commodity is paid in advance, substantial amounts belonging to the petitioners herein remain in the hands of Coal India Ltd. and its subsidiaries to be adjusted against the price payable by the petitioners for the coal to be lifted and there was no risk involved in continuing to supply coal to the petitioners on the basis of the individual coal linkage. It is pointed out on behalf of the Coal India Ltd. that the amount paid is to be adjusted towards the supply of coal to be made and it gets dwindled every time when a supply is made and that would be inadequate security or protection to Coal India Ltd. and its subsidiaries.7. Keeping in mind the interests of both sides and taking note of the facts and circumstances as a whole, we think that it would be appropriate to direct the petitioners to pay a part of the enhanced price while at the same time furnish security for the balance that might become payable in case their challenge to the E-auction scheme is repelled. The rights of the petitioners claiming themselves to be small scale industries can be protected by directing them to furnish security for a major part of the enhanced price and accepting the undertaking given on behalf of Coal India Ltd. and its subsidiaries to refund whatever had been paid in excess with interest thereon in case the petitioners succeed in their challenge to the E-auction system introduced by the Coal Companies. Since there is substance in the argument that mere furnishing of security or bank guarantee would not enable Coal India Ltd. and its subsidiaries to carry on their business which it was necessary to do in the interests of the whole Nation, we feel that a direction to pay at least a part of the enhanced price by the petitioners could be justified in the circumstances.8. It is pointed out that in respect of some entities, coal was being supplied at the notified price enhanced by 20% thereof and this would be a guide for fixing the percentage of the excess price to be paid by the petitioners. It is pointed out that enhancement of the notified price only by 20% was in respect of very small consumers and in respect of Central and State Agencies and that cannot form the basis for supply of coal to the petitioners herein having a coal linkage with the coal companies. Taking note of the circumstances as a whole we feel that it would be just and proper to direct the petitioner companies/firms, having coal linkage, to pay in addition to the notified price, 33 1/3 % of the enhanced price, each time they claim supply of coal to them based on the linkage and by furnishing security for the balance 66 2/3% of the enhanced price with an undertaking filed in this Court that the said part of the price will also be paid within 6 weeks of the decision of this Court in the writ petitions in case the writ petitions are decided against the petitioners. To protect the interest of the petitioners and to ensure that no permanent harm is caused to them we also think it proper to record the undertaking given on behalf of the Coal India Ltd. and its subsidiaries that in case this Court upholds the challenge made by the petitioners and allows the writ petitions filed by them, the enhanced price of 33 1/3% now to be paid by the petitioners will be refunded to the petitioners within 6 weeks of the judgment of this Court with interest thereon at 12% per annum from the date of payment till the date of return to the concerned petitioner.9. There is a complaint on behalf of the petitioners that coal was not being supplied in spite of interim orders passed by this Court earlier. Of course, this submission is disputed by counsel for the respondents.
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6. We have given our anxious thought to the rival submissions. Most of the High Courts have passed orders directing the furnishing of bank guarantee and some of the High Courts have passed orders directing the furnishing of security for the difference in prices before claiming the supply of coal based on the coal linkage. Learned counsel for the petitioners pointed out that as the price of the commodity is paid in advance, substantial amounts belonging to the petitioners herein remain in the hands of Coal India Ltd. and its subsidiaries to be adjusted against the price payable by the petitioners for the coal to be lifted and there was no risk involved in continuing to supply coal to the petitioners on the basis of the individual coal linkage. It is pointed out on behalf of the Coal India Ltd. that the amount paid is to be adjusted towards the supply of coal to be made and it gets dwindled every time when a supply is made and that would be inadequate security or protection to Coal India Ltd. and its subsidiaries.7. Keeping in mind the interests of both sides and taking note of the facts and circumstances as a whole, we think that it would be appropriate to direct the petitioners to pay a part of the enhanced price while at the same time furnish security for the balance that might become payable in case their challenge to the E-auction scheme is repelled. The rights of the petitioners claiming themselves to be small scale industries can be protected by directing them to furnish security for a major part of the enhanced price and accepting the undertaking given on behalf of Coal India Ltd. and its subsidiaries to refund whatever had been paid in excess with interest thereon in case the petitioners succeed in their challenge to the E-auction system introduced by the Coal Companies. Since there is substance in the argument that mere furnishing of security or bank guarantee would not enable Coal India Ltd. and its subsidiaries to carry on their business which it was necessary to do in the interests of the whole Nation, we feel that a direction to pay at least a part of the enhanced price by the petitioners could be justified in the circumstances.8. It is pointed out that in respect of some entities, coal was being supplied at the notified price enhanced by 20% thereof and this would be a guide for fixing the percentage of the excess price to be paid by the petitioners. It is pointed out that enhancement of the notified price only by 20% was in respect of very small consumers and in respect of Central and State Agencies and that cannot form the basis for supply of coal to the petitioners herein having a coal linkage with the coal companies. Taking note of the circumstances as a whole we feel that it would be just and proper to direct the petitioner companies/firms, having coal linkage, to pay in addition to the notified price, 33 1/3 % of the enhanced price, each time they claim supply of coal to them based on the linkage and by furnishing security for the balance 66 2/3% of the enhanced price with an undertaking filed in this Court that the said part of the price will also be paid within 6 weeks of the decision of this Court in the writ petitions in case the writ petitions are decided against the petitioners. To protect the interest of the petitioners and to ensure that no permanent harm is caused to them we also think it proper to record the undertaking given on behalf of the Coal India Ltd. and its subsidiaries that in case this Court upholds the challenge made by the petitioners and allows the writ petitions filed by them, the enhanced price of 33 1/3% now to be paid by the petitioners will be refunded to the petitioners within 6 weeks of the judgment of this Court with interest thereon at 12% per annum from the date of payment till the date of return to the concerned petitioner.9. There is a complaint on behalf of the petitioners that coal was not being supplied in spite of interim orders passed by this Court earlier. Of course, this submission is disputed by counsel for the respondents.
|
Hanumanprasad Rameshwardas Bansal and Ors Vs. State of Maharashtra and Ors | Amicus Curiae the issue was lifting or piercing the corporate veil in respect of company and its subsidiaries. In the present case there is no question of lifting corporate veil as there is no allegation of fraud or malfeasance in the first case. 23. In J.K. Industries Ltd. &Ors. vs. Chief Inspector of Factories and Boilers &Ors. (Supra) relied upon by the Learned Amicus Curiae, the Supreme Court was dealing with the Factories Act, 1948 under which an occupier is required to be nominated by the Director of the Company in his capacity as the occupier of the factory. The question was whether in case of Company which owns or runs the factory, is it only a Director of the Company who can be notified as the occupier of the factory within the meaning of proviso (ii) to section 2(n) of the Act or whether the Company can nominate any other employee to be the occupier by passing a resolution to the effect that the said employee shall have ultimate control over the affairs of the factory. The Supreme Court in the said case was thus dealing with the case of the Factories Act under which the occupier as defined under section 2(n) means a person who has ultimate control over the affairs of the factory and in case of company any one of the Director shall be deemed to be occupier. In the present case, we are not dealing with the factory. The Company does not run a factory and therefore the said case is distinguishable on facts. 24. The observations in paragraph no. 83 of Bhuwalka Steel Industries Limited vs. Bombay Iron and Steel Labour Board &Anr. (Supra) and the observations paragraph no. 19 of Pepsico India Holding Private Limited vs. Grocery Market & Shops Board &Ors. (Supra) relied upon by learned Amicus Curiae does not assist the case of the Respondents. Merely because the Mathadi Act is a beneficial piece of legislation would not mean that the Petitioners can be proceeded against in their individual capacity and against their individual properties. 25. It is well settled that a Company is a separate legal entity than that of its Directors as held in the case of Salomon vs. Salomon & Company (1897 AC 22 : (1895-99) All ER Rep. 33 (HL). In P.C. Agarwala vs. Payment of Wages Inspector, M.P. &Ors. (2005) 8 SCC 104 it was held by the Supreme Court in paragraph no. 18 that it is trite law that the liability of the person is dependent upon the statutory prescriptions governing such liability. It is further observed that in order to attract the liability under the Act, is has to be seen as to whom the Act fixes the liability. 26. It is required to be noted that in the present case there is no liability fixed upon any Director or Directors under the Mathadi Act to be liable for the dues of the registered employer which is admitted to be the Company. 27. In the final order dated 06th November, 1999 issued under section 13 of the Mathadi Act it is stated that the Company is a registered employer. However, there is nothing on record to show that prior to the passing of the final order dated 06th November, 1999 notices have been served upon the Petitioners calling upon them to show cause why they should not be made personally liable for the payment of dues of the said Company. Similarly in the said final order dated 06th November, 1999 there is no finding that the Petitioners as Directors of the Company would be personally liable in the event of non-recovery of the dues from the Company. There is no finding in the impugned order as to which of the Directors were in-charge of the day-to-day affairs of the Company. 28. In the circumstances, before proceeding against the Petitioners who are the Directors and casting any liability on them personally, it is incumbent upon the Respondent No. 3-Board and the Respondent No. 2-Collector to issue notice to the Petitioners that the dues of the Company would be recovered from them personally and their personal properties were liable to be proceeded in case of failure to pay the outstanding dues of the Company. In absence of such notice the Respondents could not have proceeded against the Petitioners in their individual capacity as Directors for the default of the Company. 29. The Rules and principles of natural justice would require that the Petitioners ought to have been noticed before proceeding against them. Thus, there is a clear violation of the principles of natural justice and thus on this ground alone the Writ Petition must succeed. 30. The Recovery Certificate dated 30th December, 1999 was issued by the Respondent No. 3-Board and forwarded to the Collector. In the subject caption it is specifically mentioned- Recovery of arrears for payment to registered workers of Rs. 9,30,150.00 from M/s. Suvidha Warehousing Co. P. Limited, Mulund, Mumbai. 31. In the said Recovery Certificate addressed to the Collector, the Secretary and Recovery Officer of Respondent No. 3-Board has requested the Collector to recover the amount as arrears of the land revenue and also enclosed the details under section 17(1) and 17(2) of the Maharashtra Land Revenue Rules, 1967. In the Form in Clause E, it is mentioned that the amount is to be recovered from the Company. It does not mention that the amount has to be recovered from the Petitioners who are the Directors. 32. Neither in the Company Act nor in the Mathadi Act any provision has been made to make the Director of the Company personally liable for the recovery of dues of the Company. Without putting the Petitioners to notice that the liability is being fixed upon them in their individual capacity, they cannot be proceeded against. 33. In the present case there is no averment or assertion by the Board in the pleadings that the Petitioners have played fraud or are guilty of malfeasance or misfeasance. | 1[ds]Having heard the learned Counsel for the Petitioners and having perused the materials on record, we are of the view that the Petitioners cannot be made personally liable to pay the dues of the workers for the following reasons.7. It is an admitted position that the Company was registered employer with the Respondent No. 3-Board and is liable to pay the dues of the workers under the Mathadi Act.There is no provision under the Mathadi Act which makes Managing Director or the Directors personally liable to pay the dues which the Board is empowered to recover from the employer. It is not that under no circumstances the dues can be recovered from the Managing Director or the Directors, but the same has to be in consonance with the provisions of the Act.16. In Suresh Tulsidas Kilachand &Ors. vs. Collector of Bombay &Ors. (Supra) relied upon by learned Counsel for the Petitioners, the Division Bench of this Court has laid down that no individual Director merely by being a Director can be said to be exercising ultimate control over the affairs of the Company and the same has to be established as a fact by evidence. This decision has been cited with approval by the Supreme Court in Employees State Insurance Corporation vs. S.K. Aggarwal &Ors. (supra).17. In Employees State Insurance Corporation vs. S.K. Aggarwal &Ors. (supra) relied upon by the learned Counsel for the Petitioners, the Supreme Court has observed that Employees State Insurance Act does not define the term Employer. Even definition of Principal Employer under Employees State Insurance Act would not include Directors of Company when the Company owns the factory and is employer of its employees. The Supreme Court held that the term Employer in Explanation 2 of section 405 of the Indian Penal Code must be understood in ordinary parlance and the Company as employer and not its Directors either singly or collectively. In paragraph no. 7 the Supreme Court held that-7. Under Section 40 the words owner and occupier have been used disjunctively. The Court also referred to Section 100 of the Factories Act and said that even under the Factories Act, 1948, the Legislature has clearly contemplated that in the case of a factory, a company can be the occupier. Therefore, when the owner of a factory is a company it is the company which is the principal employer and not its director. The Bombay High Court overruled the judgment of the single Judge of the Bombay High Court in so deciding.18. In P.C. Agarwal vs. Payment of Wages Inspect, MP &Ors. (supra) the Supreme Court while dealing with the Factories Act has held as under:18. It is trite law that liability of a person is dependent upon the statutory prescriptions governing such liability. Sections 5 and 291 of the Companies Act, 1956 (in short Companies Act) are to be noted in this regard. Section 5 refers to officer who is in default. Section 291 on the other hand relates to general powers of the Board of Directors. In order to attract the liability under the Act, it has to be seen as to on whom the Act fixes the liability. Section 3 speaks of the responsibility for payment of wages. It speaks of the employer which expression is defined in Section 2(ia). Section 15 refers to the claims arising out of deductions from wages or delaying payment of wages and penalty for malicious or vexatious claims. Statutorily no liability has been fixed on the Directors.21. In case of R.B. Shah vs. V.R. Savarkar &Ors. (Supra) relied upon the by learned Amicus Curiae, it was an admitted position that the Company therein was a factory and that the Applicant therein was Manager of that factory. The Court referred to section 3 of the Payment of Wages Act which casts upon the employer responsibility for payment of wages. The Court noted that the employer is defined in that Section and in case of factory the employer is the person named as Manager of the factory. In the present case the Company is not running a factory and we are not dealing with the Payment of Wages Act, which specifically provided that the employer who is named as Manager and who was responsible for the payment of wages casts responsibility upon the employer and it was held that Manager and not the Company is made responsible for the payment of wages under the Payment of Wages Act.22. In State of U.P. &Ors. vs. Renusagar Power Co. &Ors. (supra) relied upon by the Learned Amicus Curiae the issue was lifting or piercing the corporate veil in respect of company and its subsidiaries. In the present case there is no question of lifting corporate veil as there is no allegation of fraud or malfeasance in the first case.23. In J.K. Industries Ltd. &Ors. vs. Chief Inspector of Factories and Boilers &Ors. (Supra) relied upon by the Learned Amicus Curiae, the Supreme Court was dealing with the Factories Act, 1948 under which an occupier is required to be nominated by the Director of the Company in his capacity as the occupier of the factory. The question was whether in case of Company which owns or runs the factory, is it only a Director of the Company who can be notified as the occupier of the factory within the meaning of proviso (ii) to section 2(n) of the Act or whether the Company can nominate any other employee to be the occupier by passing a resolution to the effect that the said employee shall have ultimate control over the affairs of the factory. The Supreme Court in the said case was thus dealing with the case of the Factories Act under which the occupier as defined under section 2(n) means a person who has ultimate control over the affairs of the factory and in case of company any one of the Director shall be deemed to be occupier. In the present case, we are not dealing with the factory. The Company does not run a factory and therefore the said case is distinguishable on facts.24. The observations in paragraph no. 83 of Bhuwalka Steel Industries Limited vs. Bombay Iron and Steel Labour Board &Anr. (Supra) and the observations paragraph no. 19 of Pepsico India Holding Private Limited vs. Grocery Market & Shops Board &Ors. (Supra) relied upon by learned Amicus Curiae does not assist the case of the Respondents. Merely because the Mathadi Act is a beneficial piece of legislation would not mean that the Petitioners can be proceeded against in their individual capacity and against their individual properties.25. It is well settled that a Company is a separate legal entity than that of its Directors as held in the case of Salomon vs. Salomon & Company (1897 AC 22 : (1895-99) All ER Rep. 33 (HL). In P.C. Agarwala vs. Payment of Wages Inspector, M.P. &Ors. (2005) 8 SCC 104 it was held by the Supreme Court in paragraph no. 18 that it is trite law that the liability of the person is dependent upon the statutory prescriptions governing such liability. It is further observed that in order to attract the liability under the Act, is has to be seen as to whom the Act fixes the liability.26. It is required to be noted that in the present case there is no liability fixed upon any Director or Directors under the Mathadi Act to be liable for the dues of the registered employer which is admitted to be the Company.27. In the final order dated 06th November, 1999 issued under section 13 of the Mathadi Act it is stated that the Company is a registered employer. However, there is nothing on record to show that prior to the passing of the final order dated 06th November, 1999 notices have been served upon the Petitioners calling upon them to show cause why they should not be made personally liable for the payment of dues of the said Company. Similarly in the said final order dated 06th November, 1999 there is no finding that the Petitioners as Directors of the Company would be personally liable in the event of non-recovery of the dues from the Company. There is no finding in the impugned order as to which of the Directors were in-charge of the day-to-day affairs of the Company.28. In the circumstances, before proceeding against the Petitioners who are the Directors and casting any liability on them personally, it is incumbent upon the Respondent No. 3-Board and the Respondent No. 2-Collector to issue notice to the Petitioners that the dues of the Company would be recovered from them personally and their personal properties were liable to be proceeded in case of failure to pay the outstanding dues of the Company. In absence of such notice the Respondents could not have proceeded against the Petitioners in their individual capacity as Directors for the default of the Company.29. The Rules and principles of natural justice would require that the Petitioners ought to have been noticed before proceeding against them. Thus, there is a clear violation of the principles of natural justice and thus on this ground alone the Writ Petition must succeed.31. In the said Recovery Certificate addressed to the Collector, the Secretary and Recovery Officer of Respondent No. 3-Board has requested the Collector to recover the amount as arrears of the land revenue and also enclosed the details under section 17(1) and 17(2) of the Maharashtra Land Revenue Rules, 1967. In the Form in Clause E, it is mentioned that the amount is to be recovered from the Company. It does not mention that the amount has to be recovered from the Petitioners who are the Directors.32. Neither in the Company Act nor in the Mathadi Act any provision has been made to make the Director of the Company personally liable for the recovery of dues of the Company. Without putting the Petitioners to notice that the liability is being fixed upon them in their individual capacity, they cannot be proceeded against.33. In the present case there is no averment or assertion by the Board in the pleadings that the Petitioners have played fraud or are guilty of malfeasance or misfeasance. | 1 | 3,966 | 1,877 | ### 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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Amicus Curiae the issue was lifting or piercing the corporate veil in respect of company and its subsidiaries. In the present case there is no question of lifting corporate veil as there is no allegation of fraud or malfeasance in the first case. 23. In J.K. Industries Ltd. &Ors. vs. Chief Inspector of Factories and Boilers &Ors. (Supra) relied upon by the Learned Amicus Curiae, the Supreme Court was dealing with the Factories Act, 1948 under which an occupier is required to be nominated by the Director of the Company in his capacity as the occupier of the factory. The question was whether in case of Company which owns or runs the factory, is it only a Director of the Company who can be notified as the occupier of the factory within the meaning of proviso (ii) to section 2(n) of the Act or whether the Company can nominate any other employee to be the occupier by passing a resolution to the effect that the said employee shall have ultimate control over the affairs of the factory. The Supreme Court in the said case was thus dealing with the case of the Factories Act under which the occupier as defined under section 2(n) means a person who has ultimate control over the affairs of the factory and in case of company any one of the Director shall be deemed to be occupier. In the present case, we are not dealing with the factory. The Company does not run a factory and therefore the said case is distinguishable on facts. 24. The observations in paragraph no. 83 of Bhuwalka Steel Industries Limited vs. Bombay Iron and Steel Labour Board &Anr. (Supra) and the observations paragraph no. 19 of Pepsico India Holding Private Limited vs. Grocery Market & Shops Board &Ors. (Supra) relied upon by learned Amicus Curiae does not assist the case of the Respondents. Merely because the Mathadi Act is a beneficial piece of legislation would not mean that the Petitioners can be proceeded against in their individual capacity and against their individual properties. 25. It is well settled that a Company is a separate legal entity than that of its Directors as held in the case of Salomon vs. Salomon & Company (1897 AC 22 : (1895-99) All ER Rep. 33 (HL). In P.C. Agarwala vs. Payment of Wages Inspector, M.P. &Ors. (2005) 8 SCC 104 it was held by the Supreme Court in paragraph no. 18 that it is trite law that the liability of the person is dependent upon the statutory prescriptions governing such liability. It is further observed that in order to attract the liability under the Act, is has to be seen as to whom the Act fixes the liability. 26. It is required to be noted that in the present case there is no liability fixed upon any Director or Directors under the Mathadi Act to be liable for the dues of the registered employer which is admitted to be the Company. 27. In the final order dated 06th November, 1999 issued under section 13 of the Mathadi Act it is stated that the Company is a registered employer. However, there is nothing on record to show that prior to the passing of the final order dated 06th November, 1999 notices have been served upon the Petitioners calling upon them to show cause why they should not be made personally liable for the payment of dues of the said Company. Similarly in the said final order dated 06th November, 1999 there is no finding that the Petitioners as Directors of the Company would be personally liable in the event of non-recovery of the dues from the Company. There is no finding in the impugned order as to which of the Directors were in-charge of the day-to-day affairs of the Company. 28. In the circumstances, before proceeding against the Petitioners who are the Directors and casting any liability on them personally, it is incumbent upon the Respondent No. 3-Board and the Respondent No. 2-Collector to issue notice to the Petitioners that the dues of the Company would be recovered from them personally and their personal properties were liable to be proceeded in case of failure to pay the outstanding dues of the Company. In absence of such notice the Respondents could not have proceeded against the Petitioners in their individual capacity as Directors for the default of the Company. 29. The Rules and principles of natural justice would require that the Petitioners ought to have been noticed before proceeding against them. Thus, there is a clear violation of the principles of natural justice and thus on this ground alone the Writ Petition must succeed. 30. The Recovery Certificate dated 30th December, 1999 was issued by the Respondent No. 3-Board and forwarded to the Collector. In the subject caption it is specifically mentioned- Recovery of arrears for payment to registered workers of Rs. 9,30,150.00 from M/s. Suvidha Warehousing Co. P. Limited, Mulund, Mumbai. 31. In the said Recovery Certificate addressed to the Collector, the Secretary and Recovery Officer of Respondent No. 3-Board has requested the Collector to recover the amount as arrears of the land revenue and also enclosed the details under section 17(1) and 17(2) of the Maharashtra Land Revenue Rules, 1967. In the Form in Clause E, it is mentioned that the amount is to be recovered from the Company. It does not mention that the amount has to be recovered from the Petitioners who are the Directors. 32. Neither in the Company Act nor in the Mathadi Act any provision has been made to make the Director of the Company personally liable for the recovery of dues of the Company. Without putting the Petitioners to notice that the liability is being fixed upon them in their individual capacity, they cannot be proceeded against. 33. In the present case there is no averment or assertion by the Board in the pleadings that the Petitioners have played fraud or are guilty of malfeasance or misfeasance.
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named as Manager and who was responsible for the payment of wages casts responsibility upon the employer and it was held that Manager and not the Company is made responsible for the payment of wages under the Payment of Wages Act.22. In State of U.P. &Ors. vs. Renusagar Power Co. &Ors. (supra) relied upon by the Learned Amicus Curiae the issue was lifting or piercing the corporate veil in respect of company and its subsidiaries. In the present case there is no question of lifting corporate veil as there is no allegation of fraud or malfeasance in the first case.23. In J.K. Industries Ltd. &Ors. vs. Chief Inspector of Factories and Boilers &Ors. (Supra) relied upon by the Learned Amicus Curiae, the Supreme Court was dealing with the Factories Act, 1948 under which an occupier is required to be nominated by the Director of the Company in his capacity as the occupier of the factory. The question was whether in case of Company which owns or runs the factory, is it only a Director of the Company who can be notified as the occupier of the factory within the meaning of proviso (ii) to section 2(n) of the Act or whether the Company can nominate any other employee to be the occupier by passing a resolution to the effect that the said employee shall have ultimate control over the affairs of the factory. The Supreme Court in the said case was thus dealing with the case of the Factories Act under which the occupier as defined under section 2(n) means a person who has ultimate control over the affairs of the factory and in case of company any one of the Director shall be deemed to be occupier. In the present case, we are not dealing with the factory. The Company does not run a factory and therefore the said case is distinguishable on facts.24. The observations in paragraph no. 83 of Bhuwalka Steel Industries Limited vs. Bombay Iron and Steel Labour Board &Anr. (Supra) and the observations paragraph no. 19 of Pepsico India Holding Private Limited vs. Grocery Market & Shops Board &Ors. (Supra) relied upon by learned Amicus Curiae does not assist the case of the Respondents. Merely because the Mathadi Act is a beneficial piece of legislation would not mean that the Petitioners can be proceeded against in their individual capacity and against their individual properties.25. It is well settled that a Company is a separate legal entity than that of its Directors as held in the case of Salomon vs. Salomon & Company (1897 AC 22 : (1895-99) All ER Rep. 33 (HL). In P.C. Agarwala vs. Payment of Wages Inspector, M.P. &Ors. (2005) 8 SCC 104 it was held by the Supreme Court in paragraph no. 18 that it is trite law that the liability of the person is dependent upon the statutory prescriptions governing such liability. It is further observed that in order to attract the liability under the Act, is has to be seen as to whom the Act fixes the liability.26. It is required to be noted that in the present case there is no liability fixed upon any Director or Directors under the Mathadi Act to be liable for the dues of the registered employer which is admitted to be the Company.27. In the final order dated 06th November, 1999 issued under section 13 of the Mathadi Act it is stated that the Company is a registered employer. However, there is nothing on record to show that prior to the passing of the final order dated 06th November, 1999 notices have been served upon the Petitioners calling upon them to show cause why they should not be made personally liable for the payment of dues of the said Company. Similarly in the said final order dated 06th November, 1999 there is no finding that the Petitioners as Directors of the Company would be personally liable in the event of non-recovery of the dues from the Company. There is no finding in the impugned order as to which of the Directors were in-charge of the day-to-day affairs of the Company.28. In the circumstances, before proceeding against the Petitioners who are the Directors and casting any liability on them personally, it is incumbent upon the Respondent No. 3-Board and the Respondent No. 2-Collector to issue notice to the Petitioners that the dues of the Company would be recovered from them personally and their personal properties were liable to be proceeded in case of failure to pay the outstanding dues of the Company. In absence of such notice the Respondents could not have proceeded against the Petitioners in their individual capacity as Directors for the default of the Company.29. The Rules and principles of natural justice would require that the Petitioners ought to have been noticed before proceeding against them. Thus, there is a clear violation of the principles of natural justice and thus on this ground alone the Writ Petition must succeed.31. In the said Recovery Certificate addressed to the Collector, the Secretary and Recovery Officer of Respondent No. 3-Board has requested the Collector to recover the amount as arrears of the land revenue and also enclosed the details under section 17(1) and 17(2) of the Maharashtra Land Revenue Rules, 1967. In the Form in Clause E, it is mentioned that the amount is to be recovered from the Company. It does not mention that the amount has to be recovered from the Petitioners who are the Directors.32. Neither in the Company Act nor in the Mathadi Act any provision has been made to make the Director of the Company personally liable for the recovery of dues of the Company. Without putting the Petitioners to notice that the liability is being fixed upon them in their individual capacity, they cannot be proceeded against.33. In the present case there is no averment or assertion by the Board in the pleadings that the Petitioners have played fraud or are guilty of malfeasance or misfeasance.
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Raj Kumari & Another Vs. Ravinder Kumar(Deceased) through Lrs. & Others | Mohan M. Shantanagoudar, J.1. Leave granted.2. These appeals arise out of the judgment dated 21.10.2016 passed by the High Court of Punjab and Haryana at Chandigarh in Regular Second Appeal Nos. 2636 of 2009 (O&M) and 3664 of 2009 (O&M), by which the concurrent judgments of the trial Court, as well as, the first appellate Court are set aside.3. Brief facts giving rise to these appeals are:Civil Suit bearing No. RT-23 of 1997 was filed at the instance of Lekh Raj and Raksha Devi daughter of Kishan Dass seeking a declaration qua execution of two sale deeds dated 23.05.1996 Ex. D2 and Ex. D3 measuring 9 kanals 5 marlas situated in village Bani executed by Kishan Dass and Lekh Raj jointly in favour of Ravinder Kumar. The very suit also prayed for a declaration in respect of the land measuring 6 kanals 12 marlas of village Ganguwal.4. The trial Court, as well as, the first appellate Court decreed the suit. As mentioned supra, the High Court in the aforementioned two regular second appeals, set aside the judgments of the trial Court, as well as, the first appellate Court and dismissed the suit.5. According to the plaintiffs, they were the joint owners in possession of the total suit land measuring 15 kanals 17 marlas . The suit land situated at village Ganguwal was the ancestral land inherited by plaintiff no.1 and father of plaintiff no.2 from their father and was being used jointly by them for their residence, whereas the suit land situated at village Bani was the self acquired property of plaintiff no.1 and father of plaintiff no.2. However, it is the case of defendant no.1 that the sale deeds were executed for a valuable consideration which was paid by the defendants to the plaintiffs before the Sub-Registrar at the time of execution of the sale deeds in the presence of attesting witnesses. Defendant no.1 sold a part of the suit land to defendant no.4. However, some contradictory stands were also taken by the defendants later.6. Be that as it may, it may not be necessary for us to go in detail on the subject involved in these appeals, inasmuch as we find that the matters need to be re-considered by the High Court, since the High Court has ignored the vital averments made in the plaint while dismissing the suit. On going through the material on record, it is disclosed that the High Court has not only ignored the vital pleadings but also ignored the important material on record. So also, it has failed to consider the question of law involved in the matter. The High Court has also not assigned any reason, much less valid reason, to disturb the concurrent findings of fact arrived at by the courts below.7. In view of the above, in our considered opinion, it would be just and proper to remit the matter to the High Court for a fresh consideration. | 1[ds]6. Be that as it may, it may not be necessary for us to go in detail on the subject involved in these appeals, inasmuch as we find that the matters need to beby the High Court, since the High Court has ignored the vital averments made in the plaint while dismissing the suit. On going through the material on record, it is disclosed that the High Court has not only ignored the vital pleadings but also ignored the important material on record. So also, it has failed to consider the question of law involved in the matter. The High Court has also not assigned any reason, much less valid reason, to disturb the concurrent findings of fact arrived at by the courts below.7. In view of the above, in our considered opinion, it would be just and proper to remit the matter to the High Court for a fresh consideration. | 1 | 541 | 170 | ### Instruction:
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Mohan M. Shantanagoudar, J.1. Leave granted.2. These appeals arise out of the judgment dated 21.10.2016 passed by the High Court of Punjab and Haryana at Chandigarh in Regular Second Appeal Nos. 2636 of 2009 (O&M) and 3664 of 2009 (O&M), by which the concurrent judgments of the trial Court, as well as, the first appellate Court are set aside.3. Brief facts giving rise to these appeals are:Civil Suit bearing No. RT-23 of 1997 was filed at the instance of Lekh Raj and Raksha Devi daughter of Kishan Dass seeking a declaration qua execution of two sale deeds dated 23.05.1996 Ex. D2 and Ex. D3 measuring 9 kanals 5 marlas situated in village Bani executed by Kishan Dass and Lekh Raj jointly in favour of Ravinder Kumar. The very suit also prayed for a declaration in respect of the land measuring 6 kanals 12 marlas of village Ganguwal.4. The trial Court, as well as, the first appellate Court decreed the suit. As mentioned supra, the High Court in the aforementioned two regular second appeals, set aside the judgments of the trial Court, as well as, the first appellate Court and dismissed the suit.5. According to the plaintiffs, they were the joint owners in possession of the total suit land measuring 15 kanals 17 marlas . The suit land situated at village Ganguwal was the ancestral land inherited by plaintiff no.1 and father of plaintiff no.2 from their father and was being used jointly by them for their residence, whereas the suit land situated at village Bani was the self acquired property of plaintiff no.1 and father of plaintiff no.2. However, it is the case of defendant no.1 that the sale deeds were executed for a valuable consideration which was paid by the defendants to the plaintiffs before the Sub-Registrar at the time of execution of the sale deeds in the presence of attesting witnesses. Defendant no.1 sold a part of the suit land to defendant no.4. However, some contradictory stands were also taken by the defendants later.6. Be that as it may, it may not be necessary for us to go in detail on the subject involved in these appeals, inasmuch as we find that the matters need to be re-considered by the High Court, since the High Court has ignored the vital averments made in the plaint while dismissing the suit. On going through the material on record, it is disclosed that the High Court has not only ignored the vital pleadings but also ignored the important material on record. So also, it has failed to consider the question of law involved in the matter. The High Court has also not assigned any reason, much less valid reason, to disturb the concurrent findings of fact arrived at by the courts below.7. In view of the above, in our considered opinion, it would be just and proper to remit the matter to the High Court for a fresh consideration.
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6. Be that as it may, it may not be necessary for us to go in detail on the subject involved in these appeals, inasmuch as we find that the matters need to beby the High Court, since the High Court has ignored the vital averments made in the plaint while dismissing the suit. On going through the material on record, it is disclosed that the High Court has not only ignored the vital pleadings but also ignored the important material on record. So also, it has failed to consider the question of law involved in the matter. The High Court has also not assigned any reason, much less valid reason, to disturb the concurrent findings of fact arrived at by the courts below.7. In view of the above, in our considered opinion, it would be just and proper to remit the matter to the High Court for a fresh consideration.
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Maharashtra State Road Transportcorporation Vs. Shri Balwant Regular Motor Service.Amravati & Ors | the applicant for the certiorari would simply so state in his affidavit, and thus its non-production would be excused at that stage. If the court was persuaded that the conviction or order when in writing would probably be quashable, it would grant the certiorari, and order return of the record of adjudication. It is well settled by several English authorities that even though there was no such record when the inferior tribunal received the writ of certitori it could not defeat the writ by making a return that the record was not drawn up or that it had only made an oral order. If it did so, then the return would be quashed and the tribunal directed to enter the conviction or order and return it: R. v. Levermore, (1700) 1 Salk 146; R. v. Lichfield, (1843) 4 QB 893; R. v. Coles, (1845) 8 QB 75; and R. v. Trafford, (1855) 4 WR 55. This was the legal position even though at common law a practice bad grown up of not drawing up convictions until an appeal was taken or a certiorari received, which practice was continued by the Summary Conviction Rules, 1915, R. 53 and later by the Magistrates Courts Rules 1952, Rule 19 (1). These rules referred to convictions not being drawn up till needed for an appeal or other "legal purpose." That an oral order was a legally valid order is also indicated by the decision of the Court of Appeal in Rex v. Newington Licensing Justices, (1948) 1. KB 681 in which the lessee of premises in respect of which a justices off-licence was in force applied for the transfer of the licence to her from the previous lessee and licensee. At the hearing of the application it appeared that the applicant had mortgaged the premises by way of sub-demise to the lessors and the justices considering the mortgage to be an agreement or other assurance under which the licence was to be transferred and held within the meaning of S. 25, sub-section (2), of the Licensing (Consolidation) Act, 1910, purported to order the applicant to produce it. It was held by the Court of Appeal that the justices had no power to order the production of any document even if it were a document which the section required to be produced and that in any view the mortgage was not such a document, and the order of the justices was therefore made without jurisdiction. The order of the justices was, however, made orally at the bearing of the application and had not been reduced into writing at the time when the motion for an order of certiorari was made. On that point the Court of Appeal held that it had no power to deal with any order but an order in writing in proceedings for certiorari. The court, therefore, refused to give judgment until the order was reduced into writing, but consented to hear the arguments on an undertaking being given by the parties that the order would be duly reduced into writing and produced before the Court. After the Court of Appeal had heard the arguments a written order was drawn up by the justices and produced before the Court which thereafter delivered the judgment and quashed the order of the grant of a writ. Reference should in this context be made to Section12 (3) of the Tribunals and Inquires Act, 1958 (6 and 7 Elizabeth 2, c. 26) which contemplates that a tribunal or any Minister may furnish a statement, either written or oral, of the reasons for the decision if requested on or before the giving or notification of the decision, to state the reasons. Section 12 provides as follows:"(1) Subject to the provisions of this section, where after the appointed day-(a) any such tribunal as is specified in the First Schedule to this Act gives any decision, or(b) any Minister notifies any decision taken by him after the holding by him or on his behalf of a statutory inquiry,....................................................it shall be the duty of the tribunal or Minister to furnish a statement, either written or oral, of the reasons for the decision if requested, on or before the giving or notification of the decision, to state the reasons:Provided that the statement may be refused, or the specification of the reasons restricted, on grounds of national security, and the tribunal or Minister may refuse to furnish the statement to a person not primarily concerned with the decision if of opinion that to furnish it would be contrary to the interests of any person primarily concerned... . . . . .. . . . . . . . . . . . . . . . . .. .. .. . .(3) Any statement of the reasons for such a decision as is mentioned in paragraph (a) or (b) of sub-section (1) of this Section, whether given in pursuance of that sub-section or of any other statutory provision, shall be taken to form part of the decision and accordingly to be incorporated in the record.. . . . . . . . . . .. . . . . . . . . . . . .It should be noticed that under this section, the statement of reasons may be oral and any such statement "shall be taken to be a part of the decision and accordingly to be incorporated in the record". Further, the duty to give reasons arises only, when a request to give them is made to the tribunal or to the Minister. No such duty arises under this sub-section if the request is made after the decision has been given or notified.15. We are therefore of the opinion that in the absence of any statutory provision there is noting wrong in principle if an administrative tribunal gives a decision orally and subsequently reduces to writing the reasons thereof and communicates it to the parties. We accordingly reject the argument of Mr. Phadke on this aspect of the case. | 0[ds]8.It is true that S. 58 (1) (a) provides that the duration of the permit should be not less than three years and not more than five years as the R. T. A. may specify in the permit. But there is nothing in S. 48 (1) of the Act which states that the R. T. A. is required to specify expressly in the order of the grant of the permit as to for what period the permit is to be effective. It is manifest, however, in the present case that the period of validity of the permit should be deemed to be five years because the order of the R. T. A. should be construed as an order of grant of a stage carriage permit " in accordance with the application under S. 48 (l) of the Act.In other words, the order of the R. T. A. dated May 10, 1965 should be construed in the context of the language of S. 48 (1) of the Act which empowers the R. T. A. to grant a stage carriage permit "in accordance with the application" or "with such modifications as it deems fit or to refuse to grant such a permit." In the present case, the R. T. A. did not make any modification and it must therefore be deemed that the grant of the permit was made in accordance with the application of the appellant which expressly declares the period of validity of the permit applied for to be of five years (See the application of the appellant printed at page 205 of Vol. II of the Paper Book).Reference may be made in this connection to Rule 80 of the Bombay Motor Vehicles Rules which provides for the forms of application for permits and to Form P. St. S. A. prescribed under that Rule which requires the application to mention for what period the stage carriage permit is to be granted. We are accordingly of the opinion that the order of the R.T. A. dated May 10, 1965 cannot be held to be illegal merely because the period of validity of the permit has not been expressly mentioned therein.It was, however, argued by Mr. Phadke on behalf of respondent No. 1 that the period of commencement of the permit should have been mentioned by the R. T. A. in its order of May 10, 1965 and the omission of the R. T. A. to do so invalidated the order. It was pointed out by Mr. Phadke that the order of the grant of permit was made on May 10, 1965 by the R. T. A. but the permits were actually issued to the appellant on April 5, 1967 to be effective for five years from at date.There is, however, nothing in the Act or in the Rules to suggest that the R. T. A. is under an obligation to mention in the order of grant of permit the actual date from which the permit as to be effective.Phadke, referred to S. 48 (3) (i) of the Act which states that the R. T. A., if it decides to grant a permit, may grant the permit for a service of stage carriage of a specified description and may subject to any rules that may be made under the Act, attach to the permit a condition that the service or any specified part thereof shall be commenced with effect from a specified date.It is manifest that this statutory provision is merely permissive and it does not apply to the order of grant of a permit which is dealt with in S. 48 (1) of the Act. In the absence of any express statutory provision it must be taken that the date of the commencement of the period of the permit would be the date from which the permit is actually issued which is April 5, 1967 in the present case.The view that we have expressed is borne out by the decision of the Bombay High Court in Shree Laxmi Bus Transport Co. v. R. T. A., Rajkot, (1960) 62 Bom LR 958 in which it was said that when an application for renewal of a stage carriage permit is granted under S. 58 of the Act, subsequent to the date on which the period of the permit expires, the period specified in the renewal cannot be made to commence retrospectively from the date of expiry of the permit sought to be renewed but will commence from the date on which it is actually renewed. Hence it is not possible to accept the argument of Mr. Phadke that the order of the R.T.A. dated May 10, 1965 is illegal merely because the date of commencement of the operation of the permit is not specified therein. In our opinion, the High court was in error in holding that the order of the R. T. A. dated May 10, 1965 was legally invalid either because the period of validity of the permit or the date of commencement was not mentioned therein.9. The next contention put forward by Mr. Phadke is that the order of the R.T.A. dated September 10/11, 1965 fixing the date of the commencement of the service was an order which was tantamount to a review of the previous order of the R. T. A. dated May, 10, 1965 and as no express power of review is conferred on the R. T. A. by any prevision of the Act, the order of September 10/11, 1965 was illegal and ultra vires. In thisHigh Court has taken the view that the order of the R. T. A. dated September 10/11, 1965 was invalid because it was made on a compromise reached by the parties during the operation of the stay order of the High Court in Civil Application No. 488 of 1965. In our opinion, the High Court was not right in taking the view that the R. T. A. had violated the stay order. The parties had themselves approached the R. T. A. on the basis of the compromise which was meant to put an end to a long protracted litigation and which allowed time to the private operators to wind up their business. On a perusal of the order of the R. T. A. dated September 10/11, 1965 if is manifest that the R.. T. A. was careful to say that the compromise will come into effect only after the withdrawal of the writ petitions by the private operators. To put it differently, the order made by the R. T. A. on September 10/11, 1965 was a conditional order, namely, an order which was intended to come into effect only after the writ petitions in the High Court were withdrawn by the private operators.It is not disputed that the roder of the R. T. A., though dated September 10/11, 1965 was formally announced on October 16, 1965 after the private operators had withdrawn the writ petitions on October 8, 1965. In these circumstances we hold that there is no violation of the stay order of the High Court and the order of the R. T. A. dated September 10/11, 1965 which was formally announced on October 16,1965 is not in any way invalid.11. In any event, we are satisfied that it is not open to the private operators including respondent No. 1 to apply for a writ in the nature of certiorari for quashing the order of the R. T. A. date September 10/11, 1965 in view of then conduct. It is not disputed that the private operators including respondent No. 1 were present in the meeting of the R. T. A. held on September 10/11, 1965 either personally or through duly appointed Counsel. Respondent No. 1 and the other private operators assured the R. T. A. at the hearing that they would withdraw the writ petitions pending in the High Court On such assurances and subject to the actual withdrawal of the writ petitions in terms of the assurance, the R. T. A. considered the mattered in the said meeting and after hearing the parties, made an order giving effect to the compromise. It is obvious that the private operators including respondent No. 1 were parties to the order dated September 10/11, 1965, had accepted that order, acted upon it and derive benefits and advantages from it for nearly one year and 9 months. But for the sat order which suspended the operation of the permit of the appellant till July 1, 1967 the private operators including respondent No. 1 could not have got temporary permits to operate on the same routes as no stage carriage permits could be issued under Section 62 of the Act during the subsistence of substantive permits. In these circumstances we consider that there was such acquiescence in the R. T. A.s order dated September 10/11, 1965 on the part of respondent No. 1 and other private operators as to disentitle them to a grant of a writ under Article 226 of the Constitution.It is well established that the writ of certiorari will not be granted in a case where there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. The principle is to a great extent, similar to though not identical with, the exercise of discretion in the Court ofour opinion, the principle of this decision applies to the present case and since respondent No. 1 and the other private operators had not even pleaded any circumstances justifying the delay or their conduct, the High Court was in error in granting a writ of certiorari in theirsignificant fact in the present case is that the decision of the R. T. A. on June 28/ 29, 1967 was given after hearing respondent No, 1 and the other private operators who were present at the meeting of the R. T. A, either personally or through Counsel and reasons for the decision were also communicated to respondent No. 1 and other private operators by a registered letter dated July 20, 1967. The principle of the decisions of this Court in (1967) 3 SCR 302 = (AIR 1967 SC 1606 ) and in Civil App. No. 657 of 1967, D/-17-8-l967 (SC) as therefore no bearing upon the determination of the question involved in the present case. Apart from any requirement imposed by the statute or statutory rules either expressly or by necessary implication we are unable to accept the contention of Mr. Phadke that there is any general principle that a statutory tribunal should always give its judgment in writing and should always give reasons thereof immediately with the pronouncement of the judgment.We are therefore of the opinion that in the absence of any statutory provision there is noting wrong in principle if an administrative tribunal gives a decision orally and subsequently reduces to writing the reasons thereof and communicates it to the parties. We accordingly reject the argument of Mr. Phadke on this aspect of the case. | 0 | 8,542 | 1,982 | ### Instruction:
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the applicant for the certiorari would simply so state in his affidavit, and thus its non-production would be excused at that stage. If the court was persuaded that the conviction or order when in writing would probably be quashable, it would grant the certiorari, and order return of the record of adjudication. It is well settled by several English authorities that even though there was no such record when the inferior tribunal received the writ of certitori it could not defeat the writ by making a return that the record was not drawn up or that it had only made an oral order. If it did so, then the return would be quashed and the tribunal directed to enter the conviction or order and return it: R. v. Levermore, (1700) 1 Salk 146; R. v. Lichfield, (1843) 4 QB 893; R. v. Coles, (1845) 8 QB 75; and R. v. Trafford, (1855) 4 WR 55. This was the legal position even though at common law a practice bad grown up of not drawing up convictions until an appeal was taken or a certiorari received, which practice was continued by the Summary Conviction Rules, 1915, R. 53 and later by the Magistrates Courts Rules 1952, Rule 19 (1). These rules referred to convictions not being drawn up till needed for an appeal or other "legal purpose." That an oral order was a legally valid order is also indicated by the decision of the Court of Appeal in Rex v. Newington Licensing Justices, (1948) 1. KB 681 in which the lessee of premises in respect of which a justices off-licence was in force applied for the transfer of the licence to her from the previous lessee and licensee. At the hearing of the application it appeared that the applicant had mortgaged the premises by way of sub-demise to the lessors and the justices considering the mortgage to be an agreement or other assurance under which the licence was to be transferred and held within the meaning of S. 25, sub-section (2), of the Licensing (Consolidation) Act, 1910, purported to order the applicant to produce it. It was held by the Court of Appeal that the justices had no power to order the production of any document even if it were a document which the section required to be produced and that in any view the mortgage was not such a document, and the order of the justices was therefore made without jurisdiction. The order of the justices was, however, made orally at the bearing of the application and had not been reduced into writing at the time when the motion for an order of certiorari was made. On that point the Court of Appeal held that it had no power to deal with any order but an order in writing in proceedings for certiorari. The court, therefore, refused to give judgment until the order was reduced into writing, but consented to hear the arguments on an undertaking being given by the parties that the order would be duly reduced into writing and produced before the Court. After the Court of Appeal had heard the arguments a written order was drawn up by the justices and produced before the Court which thereafter delivered the judgment and quashed the order of the grant of a writ. Reference should in this context be made to Section12 (3) of the Tribunals and Inquires Act, 1958 (6 and 7 Elizabeth 2, c. 26) which contemplates that a tribunal or any Minister may furnish a statement, either written or oral, of the reasons for the decision if requested on or before the giving or notification of the decision, to state the reasons. Section 12 provides as follows:"(1) Subject to the provisions of this section, where after the appointed day-(a) any such tribunal as is specified in the First Schedule to this Act gives any decision, or(b) any Minister notifies any decision taken by him after the holding by him or on his behalf of a statutory inquiry,....................................................it shall be the duty of the tribunal or Minister to furnish a statement, either written or oral, of the reasons for the decision if requested, on or before the giving or notification of the decision, to state the reasons:Provided that the statement may be refused, or the specification of the reasons restricted, on grounds of national security, and the tribunal or Minister may refuse to furnish the statement to a person not primarily concerned with the decision if of opinion that to furnish it would be contrary to the interests of any person primarily concerned... . . . . .. . . . . . . . . . . . . . . . . .. .. .. . .(3) Any statement of the reasons for such a decision as is mentioned in paragraph (a) or (b) of sub-section (1) of this Section, whether given in pursuance of that sub-section or of any other statutory provision, shall be taken to form part of the decision and accordingly to be incorporated in the record.. . . . . . . . . . .. . . . . . . . . . . . .It should be noticed that under this section, the statement of reasons may be oral and any such statement "shall be taken to be a part of the decision and accordingly to be incorporated in the record". Further, the duty to give reasons arises only, when a request to give them is made to the tribunal or to the Minister. No such duty arises under this sub-section if the request is made after the decision has been given or notified.15. We are therefore of the opinion that in the absence of any statutory provision there is noting wrong in principle if an administrative tribunal gives a decision orally and subsequently reduces to writing the reasons thereof and communicates it to the parties. We accordingly reject the argument of Mr. Phadke on this aspect of the case.
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that the order of the R.T.A. dated September 10/11, 1965 fixing the date of the commencement of the service was an order which was tantamount to a review of the previous order of the R. T. A. dated May, 10, 1965 and as no express power of review is conferred on the R. T. A. by any prevision of the Act, the order of September 10/11, 1965 was illegal and ultra vires. In thisHigh Court has taken the view that the order of the R. T. A. dated September 10/11, 1965 was invalid because it was made on a compromise reached by the parties during the operation of the stay order of the High Court in Civil Application No. 488 of 1965. In our opinion, the High Court was not right in taking the view that the R. T. A. had violated the stay order. The parties had themselves approached the R. T. A. on the basis of the compromise which was meant to put an end to a long protracted litigation and which allowed time to the private operators to wind up their business. On a perusal of the order of the R. T. A. dated September 10/11, 1965 if is manifest that the R.. T. A. was careful to say that the compromise will come into effect only after the withdrawal of the writ petitions by the private operators. To put it differently, the order made by the R. T. A. on September 10/11, 1965 was a conditional order, namely, an order which was intended to come into effect only after the writ petitions in the High Court were withdrawn by the private operators.It is not disputed that the roder of the R. T. A., though dated September 10/11, 1965 was formally announced on October 16, 1965 after the private operators had withdrawn the writ petitions on October 8, 1965. In these circumstances we hold that there is no violation of the stay order of the High Court and the order of the R. T. A. dated September 10/11, 1965 which was formally announced on October 16,1965 is not in any way invalid.11. In any event, we are satisfied that it is not open to the private operators including respondent No. 1 to apply for a writ in the nature of certiorari for quashing the order of the R. T. A. date September 10/11, 1965 in view of then conduct. It is not disputed that the private operators including respondent No. 1 were present in the meeting of the R. T. A. held on September 10/11, 1965 either personally or through duly appointed Counsel. Respondent No. 1 and the other private operators assured the R. T. A. at the hearing that they would withdraw the writ petitions pending in the High Court On such assurances and subject to the actual withdrawal of the writ petitions in terms of the assurance, the R. T. A. considered the mattered in the said meeting and after hearing the parties, made an order giving effect to the compromise. It is obvious that the private operators including respondent No. 1 were parties to the order dated September 10/11, 1965, had accepted that order, acted upon it and derive benefits and advantages from it for nearly one year and 9 months. But for the sat order which suspended the operation of the permit of the appellant till July 1, 1967 the private operators including respondent No. 1 could not have got temporary permits to operate on the same routes as no stage carriage permits could be issued under Section 62 of the Act during the subsistence of substantive permits. In these circumstances we consider that there was such acquiescence in the R. T. A.s order dated September 10/11, 1965 on the part of respondent No. 1 and other private operators as to disentitle them to a grant of a writ under Article 226 of the Constitution.It is well established that the writ of certiorari will not be granted in a case where there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. The principle is to a great extent, similar to though not identical with, the exercise of discretion in the Court ofour opinion, the principle of this decision applies to the present case and since respondent No. 1 and the other private operators had not even pleaded any circumstances justifying the delay or their conduct, the High Court was in error in granting a writ of certiorari in theirsignificant fact in the present case is that the decision of the R. T. A. on June 28/ 29, 1967 was given after hearing respondent No, 1 and the other private operators who were present at the meeting of the R. T. A, either personally or through Counsel and reasons for the decision were also communicated to respondent No. 1 and other private operators by a registered letter dated July 20, 1967. The principle of the decisions of this Court in (1967) 3 SCR 302 = (AIR 1967 SC 1606 ) and in Civil App. No. 657 of 1967, D/-17-8-l967 (SC) as therefore no bearing upon the determination of the question involved in the present case. Apart from any requirement imposed by the statute or statutory rules either expressly or by necessary implication we are unable to accept the contention of Mr. Phadke that there is any general principle that a statutory tribunal should always give its judgment in writing and should always give reasons thereof immediately with the pronouncement of the judgment.We are therefore of the opinion that in the absence of any statutory provision there is noting wrong in principle if an administrative tribunal gives a decision orally and subsequently reduces to writing the reasons thereof and communicates it to the parties. We accordingly reject the argument of Mr. Phadke on this aspect of the case.
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State Of Punjab & Another Vs. British India Corporation Ltd | is provided or a cloakroom or a number of other parts of the hereditament. Tucker J. agreed- with this conclusion and observed :- ((The element which, to MY mind., is decisive is that the facts stated show that the canteen was necessary and essential for the welfare and efficiency of the workers engaged in the admittedly industrial part of the under. taking."For applying the two principles mentioned above to the facts of these two appeals we have to ascertain to what use the property in question has been put. In the first appeal ( In which the British India Corporation Ltd. is the respondent) we are concerned -with four units : (1) A set of rooms used for indoor games by the mill employees; (2) One big hall used as the Gurkha Guards Club; (3) A set of rooms used as officers Club, and (4) A set of rooms used as residential quarters by workers of the mills.9. In our opinion, the allotment of these buildings for the use of the workmen was made for a purpose which was necessary to the efficiency of the workmen.10. The property assessed in the other appeal (in which Shri Gopal Paper Mills Ltd., is the respondent) consists of 200 quarters which have been allotted to workers of the factory for their occupation. The provision of such quarters is clearly necessary to the welfare and efficiency of the workmen and it must be held that in this case also the buildings were being used for the purpose of a factory. The next question is : what is the meaning of "rent" in cl. (ii) of Rule 18 (4). In its wider sense rent means any payment made for the use of land or buildings and thus includes the payment by a licensee in respect of the use and occupation of any land or building. In its narrower sense it means payment made by tenant to landlord for property demised to him. Did the rule-making authority when providing that the exemption provided by sub.rules 1 and 2 of Rule 18 shall not extend to quarters and other buildings for which "rent" is charged, used the word in its wider sense or in its narrower sense? In seeking an answer to this question it is legitimate to examine the use of the word "rent" in the Act for which these rules were made. At the time the rules were first made in 1941 the Act used the word "rent" only in two sections. First, in s. 5, where in providing how the annual value of land or building shall be ascertained the legislature said that it shall be ascertained "by estimating the gross annual rent at which such land or building ..................... might reasonably be expected to let from year to year. It is absolutely clear that here the word "rent" is used in its strict and narrower sense of payment by tenant to landlord for demised property. The other section where the word "rent" occurs is s. 14, where in providing for recovery of tax in arrears the legislature said : .......... it shall be lawful for the prescribed authority to serve upon any person paying rent ............... to the person from whom the arrears are due, a notice stating the amount of such arrears of tax and requiring all future payments of rent by the person paying the rent to be made direct to the prescribed authority and also providing that such notice shall operate to transfer to the Prescribed authority the right to recover, receive and give a discharge for such rent". While the section itself leaves it doubtful whether the word "rent" has been used in the narrower or the wider sense, the marginal note describes the subject-matter , of the section thus : "Recovery of tax from tenants." If this note is taken into consideration it becomes clear that in this section also the word "rent" was used in its narrower sense to mean payment made by tenant to landlord for demised property.When in 1941 the rule-making authority set about framing the Rules, it had before it this clear use of the word "rent" in its narrower sense in s. 5 and the marginal note in s. 14 which was some indication that there also the word "rent" was used in the narrower sense. In the absence of anything to indicate the contrary, it would be reasonable to think that the rule-making authority would not depart from the meaning in which it had reason to believe that the legislature had used the word, and that it used the word in cl. (ii) of Rule 18 (4) in the same narrower sense of payment by tenant to landlord for demised property.11. Our conclusion therefore is that the word "rent" in cl. (ii) of Rule 18 (4) means payment to a landlord by a tenant for the demised property and does not include payments made by licensees.12. In coming to this conclusion we have not overlooked the fact that there is scope for an argument that in cls. (d) and (e) of s. 4 of the Act as they stand after the amendments in 1954 and 1957, respectively, the word "rent" has been used in the wider sense. Assuming that this is so, such use of the word in 1954 and 1957 cannot be -taken into account for the purpose of interpretation, as the Rule under consideration was framed long before these dates.13. Coming now to the facts of the two cases before us, we find that admittedly, in both the cases. the property that has been assessed was allowed to be used by the employees on leave and license. Whatever payment was received from them was not therefore "rent" within the meaning of cl. (ii).14. Our conclusion therefore is that no tax is leviable under the Punjab Urban Immovable property Tax Act, 1940, in respect of the buildings in these two appeals. The High Court therefore rightly quashed the orders of assessment. | 0[ds]It appears to us to be reasonable to think, however, that two principles will be easy of application in the solution of tile problem in the majority of cases. One is that where the building is used for a purpose which the factory law requires must be fulfilled in order that the factory may function, that will be user for the purpose of a factory. The other is that where the user of the building is such as is necessary for the efficiency of the machines or of the workmen engaged in the factory the building should be held to be used for the purpose of aour opinion, the allotment of these buildings for the use of the workmen was made for a purpose which was necessary to the efficiency of thecoming to this conclusion we have not overlooked the fact that there is scope for an argument that in cls. (d) and (e) of s. 4 of the Act as they stand after the amendments in 1954 and 1957, respectively, the word "rent" has been used in the wider sense. Assuming that this is so, such use of the word in 1954 and 1957 cannot be -taken into account for the purpose of interpretation, as the Rule under consideration was framed long before thesenow to the facts of the two cases before us, we find that admittedly, in both the cases. the property that has been assessed was allowed to be used by the employees on leave and license. Whatever payment was received from them was not therefore "rent" within the meaning of cl.conclusion therefore is that no tax is leviable under the Punjab Urban Immovable property Tax Act, 1940, in respect of the buildings in these two appeals. The High Court therefore rightly quashed the orders of assessment. | 0 | 3,133 | 333 | ### Instruction:
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is provided or a cloakroom or a number of other parts of the hereditament. Tucker J. agreed- with this conclusion and observed :- ((The element which, to MY mind., is decisive is that the facts stated show that the canteen was necessary and essential for the welfare and efficiency of the workers engaged in the admittedly industrial part of the under. taking."For applying the two principles mentioned above to the facts of these two appeals we have to ascertain to what use the property in question has been put. In the first appeal ( In which the British India Corporation Ltd. is the respondent) we are concerned -with four units : (1) A set of rooms used for indoor games by the mill employees; (2) One big hall used as the Gurkha Guards Club; (3) A set of rooms used as officers Club, and (4) A set of rooms used as residential quarters by workers of the mills.9. In our opinion, the allotment of these buildings for the use of the workmen was made for a purpose which was necessary to the efficiency of the workmen.10. The property assessed in the other appeal (in which Shri Gopal Paper Mills Ltd., is the respondent) consists of 200 quarters which have been allotted to workers of the factory for their occupation. The provision of such quarters is clearly necessary to the welfare and efficiency of the workmen and it must be held that in this case also the buildings were being used for the purpose of a factory. The next question is : what is the meaning of "rent" in cl. (ii) of Rule 18 (4). In its wider sense rent means any payment made for the use of land or buildings and thus includes the payment by a licensee in respect of the use and occupation of any land or building. In its narrower sense it means payment made by tenant to landlord for property demised to him. Did the rule-making authority when providing that the exemption provided by sub.rules 1 and 2 of Rule 18 shall not extend to quarters and other buildings for which "rent" is charged, used the word in its wider sense or in its narrower sense? In seeking an answer to this question it is legitimate to examine the use of the word "rent" in the Act for which these rules were made. At the time the rules were first made in 1941 the Act used the word "rent" only in two sections. First, in s. 5, where in providing how the annual value of land or building shall be ascertained the legislature said that it shall be ascertained "by estimating the gross annual rent at which such land or building ..................... might reasonably be expected to let from year to year. It is absolutely clear that here the word "rent" is used in its strict and narrower sense of payment by tenant to landlord for demised property. The other section where the word "rent" occurs is s. 14, where in providing for recovery of tax in arrears the legislature said : .......... it shall be lawful for the prescribed authority to serve upon any person paying rent ............... to the person from whom the arrears are due, a notice stating the amount of such arrears of tax and requiring all future payments of rent by the person paying the rent to be made direct to the prescribed authority and also providing that such notice shall operate to transfer to the Prescribed authority the right to recover, receive and give a discharge for such rent". While the section itself leaves it doubtful whether the word "rent" has been used in the narrower or the wider sense, the marginal note describes the subject-matter , of the section thus : "Recovery of tax from tenants." If this note is taken into consideration it becomes clear that in this section also the word "rent" was used in its narrower sense to mean payment made by tenant to landlord for demised property.When in 1941 the rule-making authority set about framing the Rules, it had before it this clear use of the word "rent" in its narrower sense in s. 5 and the marginal note in s. 14 which was some indication that there also the word "rent" was used in the narrower sense. In the absence of anything to indicate the contrary, it would be reasonable to think that the rule-making authority would not depart from the meaning in which it had reason to believe that the legislature had used the word, and that it used the word in cl. (ii) of Rule 18 (4) in the same narrower sense of payment by tenant to landlord for demised property.11. Our conclusion therefore is that the word "rent" in cl. (ii) of Rule 18 (4) means payment to a landlord by a tenant for the demised property and does not include payments made by licensees.12. In coming to this conclusion we have not overlooked the fact that there is scope for an argument that in cls. (d) and (e) of s. 4 of the Act as they stand after the amendments in 1954 and 1957, respectively, the word "rent" has been used in the wider sense. Assuming that this is so, such use of the word in 1954 and 1957 cannot be -taken into account for the purpose of interpretation, as the Rule under consideration was framed long before these dates.13. Coming now to the facts of the two cases before us, we find that admittedly, in both the cases. the property that has been assessed was allowed to be used by the employees on leave and license. Whatever payment was received from them was not therefore "rent" within the meaning of cl. (ii).14. Our conclusion therefore is that no tax is leviable under the Punjab Urban Immovable property Tax Act, 1940, in respect of the buildings in these two appeals. The High Court therefore rightly quashed the orders of assessment.
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It appears to us to be reasonable to think, however, that two principles will be easy of application in the solution of tile problem in the majority of cases. One is that where the building is used for a purpose which the factory law requires must be fulfilled in order that the factory may function, that will be user for the purpose of a factory. The other is that where the user of the building is such as is necessary for the efficiency of the machines or of the workmen engaged in the factory the building should be held to be used for the purpose of aour opinion, the allotment of these buildings for the use of the workmen was made for a purpose which was necessary to the efficiency of thecoming to this conclusion we have not overlooked the fact that there is scope for an argument that in cls. (d) and (e) of s. 4 of the Act as they stand after the amendments in 1954 and 1957, respectively, the word "rent" has been used in the wider sense. Assuming that this is so, such use of the word in 1954 and 1957 cannot be -taken into account for the purpose of interpretation, as the Rule under consideration was framed long before thesenow to the facts of the two cases before us, we find that admittedly, in both the cases. the property that has been assessed was allowed to be used by the employees on leave and license. Whatever payment was received from them was not therefore "rent" within the meaning of cl.conclusion therefore is that no tax is leviable under the Punjab Urban Immovable property Tax Act, 1940, in respect of the buildings in these two appeals. The High Court therefore rightly quashed the orders of assessment.
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Dbh International Limited Vs. Their Workmen, Represented By The Transport and Dock Workers' Union | placed reliance upon the judgment of the apex Court in (J. K. Synthetics v. Rajasthan Trade Union Kendra), 2001 (2)S. C. C. 87. On the other hand, Mr. Dharap submitted that the Tribunal was wrong in considering the issue of closure and by doing so it travelled beyond the scope of the reference. The reference-was only in respect of retrenchment and no case was made our by the Management about the closure of the company. He further submitted that since the action of retrenchment, under section 25-F (b) was void ob initio, the workmen deemed to be continued in the employment and, therefore, they are entitled for reinstatement with full back wages.( 25 ) THERE was no dispute that after the retrenchment of remaining three workmen on 20. 4. 1992 there was a total closure of the establishment from 30. 4. 1992. It is against this backdrop, we would like to examine the issue raised by Mr. Singh. The Apex Court in J. K. Synthetics (supra) was considering the powers and jurisdiction of the Tribunal while dealing the question as to whether or not the retrenchment was justified. The company in that case was seeking justification of retrenchment of the workmen on the basis that there was a closure of section of its plant. The Tribunal, therefore, went into the question as to whether or not there was a closure for deciding the question as to the legality of retrenchment which the Apex court in that judgment held that there was no error in considering the issue of closure. Paragraph 24 in that judgment may be useful. Paragraph 24 reads thus ;"24. Thus, in our view, the Division Bench erred in coming to the conclusion that the Tribunal could not have gone into the question of closure as it was not referred to it. In our view, on the disputes which have been referred, particularly Dispute No. 2 (set out hereinabove it became absolutely necessary for the Tribunal to first ascertain whether there was a closure and whether such closure was bona fide. "the Apex Court in yet another judgment in Hindustan Steel Works Construction ltd. (supra) considered the question as to whether the reinstatement is must where retrenchment is held to be illegal and/or unjustified. In that case the tribunal had moulded the relief and granted compensation instead of reinstatement. The Apex Court after considering the question involved in that judgment held that the Management was groaning under the weight of surplus and excessive man-power and as such the Industrial Tribunal was entitled to mould the relief to suit the justice of the case. It would be advantageous to quote paragraph 27 of the judgment which reads thus :"27. The appellants have not been able to satisfy us that the several reasons given by the Tribunal for not directing reinstatement of the appellants-workmen are incorrect as a fact or that they are irrelevant or impermissible in law. That the respondent-Corporation is groaning under the weight of surplus and excessive man-power is not denied as a fact; indeed, it is an indeniable fact. The Industrial Tribunal is entitled to take note of the said fact and to mould the relief to suit the justice of the case. In exercise of this Courts power under Article 136 of the Constitution, it is not open to us to substitute our opinion for that of the Industrial Tribunal unless we find that the reasons given by it in the paras aforesaid are either incorrect factually or irrelevant or impermissible in law. Since we are not able to say so, these appeals are dismissed. The appeals filed by the Management also fail and are dismissed. No costs. "therefore, in our opinion, once it is found that though the retrenchment was illegal it was justified, it is for the Tribunal to consider what relief the retrenched workers are entitled to. It is open for the Tribunal, in exercise of its jurisdiction, to take note of the circumstances in a particular case and decide not to grant the relief of reinstatement, but grant a relief of compensation to the workmen. In other words, whenever retrenchment is held to be justified, though it is illegal and improper and if their reinstatement is impossible and/or likely to cause great hardship on the management, then the Court can mould the relief to suit the justice and award compensation to such workmen. In the present case, we have no hesitation in holding that the Tribunal was wrong in awarding reinstatement with full back wages after having accepted that all work had come to an end inasmuch as there was a total closure of the establishment and, therefore, the order of Tribunal granting reinstatement was unjustified and liable to be set aside.( 26 ) AFTER having observed that the order of reinstatement was not justified in view of the total closure of the establishment, in our opinion, the ends of justice would be met if the relief of compensation to the workmen is granted. According to Mr. Singh, learned Counsel for the appellant, no business was transacted after 18. 9. 1991 and the CHA Licence also expired on 31. 12. 1993 and, therefore, in any case the workmen are not entitled for any relief beyond the date of closure and/or the date on which the licence had expired. The learned Single Judge, however, while disposing of the writ petition, had observed that if the Management pays the dues upto date on the basis of cut off date being 31. 12. 1995 then the Award will be marked satisfied. This observation was made 011 the basis of the statement of Mr. Dharap, learned Counsel for the workmen. Keeping the submissions advanced by the learned Counsel appearing for the parties in view and considering that this Court, while admitting the Letters Patent Appeal, had directed the management to deposit the arrears of salary upto 31. 12. 1995 in this Court, in our opinion, that amount should be paid to the workmen as compensation. | 1[ds]( 16 ) IT is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because other side has no notice of it and, if entertained, it would be tantamount to granting an unfair advantage to the first mentioned party. In other words, the rules of fair play demand that where a party seeks to establish a contention which if proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. But if there is no pleading, there is no question of proving something which is not pleaded. The Apex Court has reiterated the aforesaid principle in Shankar Chakaravartis case (supra ). In management of Hindustan Steel case (supra) while considering the plea of infirmity of retrenchment notice, it was observed that a general plea that the grounds of retrenchment were false, is not specific and precise enough to enable the employer to meet it. Keeping the proposition of law laid down by the Apex Court in the aforesaid judgments in view, we examined the pleadings.( 17 ) IT is true that the demand notice datedthough states that the retrenchment was illegal and unjustified, except the word illegal no illegality was alleged in the demand notice or reference to the noncompliance with regulatory requirements laid down in sectionor any other provision of i. D. Act for that matter was made therein. The failure report under section 12 (4) of I. D. Act also does not make any reference to the short payment. However, from the perusal of the statement of claim that was filed by the workmen clearly states that "abrupt termination of services of seven workmen by way of retrenchment is illegal, improper, uncalled for and unjustified". Further in paragraph ten thereof the categoric statements were made to the following effect:"that the company issued retrenchment notice datedand offered one months notice wages and retrenchment compensation as provided in Clauses (a) and (b) of sectionof Industrial disputes Act, 1947, but the company has not clarified for how many years of service the retrenchment compensation is paid and, therefore, the said notice is defective. And, therefore, the retrenchment of the workmen is illegal. Also the company has failed to comply with section(C) i. e. serving notice in prescribed manner on the appropriate Government. The Union States that Clauses (a), (b) and (c) of sectionshould be complied with simultaneously before effecting retrenchment. "it was further stated in the statement of claim that the Management failed to comply with the mandatory provisions of law and, therefore, the retrenchment of workmen was illegal. Per contra, what the Management in their written statement in reply to paragraph 10 had stated was that they complied with all the requirements of law including serving the notice to the Government authorities. They had not stated anything in reply to the aforesaid averments in paragraph 10 of the statement of claim. The Management in paragraph 11 of the written statement had stated that "the Court cannot go beyond justifiability or fairness of retrenchment and the Court has no jurisdiction to adjudicate upon the legality of retrenchment" and further that "union had no right to raise an issue of legality of retrenchment and the Tribunal ought to have confined to the terms of reference and had no power to enlarge its scope". In rejoinder filed by the Union, they had reiterated the statements made in the statement of claim and had categorically denied that the Management has complied with all the provisions of law. From the perusal of the affidavit of one of the workmen Mrs. Dammer D"mello filed before the Tribunal in lieu of herin paragraph 9 thereof she had stated thus ;"9. I say that the amount of retrenchment compensation offered by the company as per provisions of Industrial Disputes Act, sectionto all the retrenched workmen is less than they are entitled. For example, I have put in 25 years continuous service and my monthly salary was Rs. 3,044. 65 and, therefore, my retrenchment compensation amount should be Rs. 38,058. 12 but I was offered only Rs. 33,597. 00. "there was noby the Management in respect of the statements made in paragraph 9. The Management in their affidavit dated 14. 6. 1995 filed by one Raman Mistry had stated that "dues offered were offered as per the law after averaging three months salary of each workman and if there is any difference it was unintentional and the company had complied with the substantial requirement of law". From the perusal of the aforementioned pleadings and the evidence, we are of the considered opinion, that it cannot be said that there was no pleading or no evidence was led by the parties in respect of the alleged shortfall in the amount of retrenchment compensation tendered by the Management. We proceed to record our reason for arriving at this conclusion. In the statement of claim, the Union had categorically stated that the company had not clarified for how many years of service the retrenchment compensation was paid and, therefore, the said notice was defective. They had further stated that Clauses (a), (b) and (c) of sectionare mandatory and have not been complied with. Since the particulars as sought in paragraph 10 were not given by the Management, in our opinion, except the general statement that the provisions of Clause (b) of sectionhad not been complied with by the Management, the Union could not have stated anything more than what had been stated in the statement of claim. Had the Management given all the particulars in the retrenchment notice, probably the Union could have made positive statement to the effect that there was a short payment. Since the retrenchment notice itself was vague which did not clarify as to for how many years of service the retrenchment compensation was offered, it was not possible to state anything more than what had been stated in the statement of claim. Moreover, from the perusal of the written statement, it is clear that the Management did have sufficient notice of the stand of the Union. As a matter of fact, in paragraphs 5 and 11 of the written statement, they had categorically stated that the court can only adjudicate as to the justifiability or fairness and not the legality of the notice and that it was not open for the Union to allege that the retrenchment is illegal. That shows that the pleadings were absolutely clear to understand or to mean that the grievance of incorrect tendering of the amount as retrenchment compensation was made by the Union and that the parties went before the Tribunal on both the questions. The evidence of D "mello, one of the workmen, shows that the grievance about the short payment was made. Under the circumstances, it is not open to make a grievance that the management had no opportunity and that the issue was discussed and considered by the Tribunal without any notice. As a matter of fact, from the evidence of Mistry, the witness of the Management, wherein he has stated that "if there is any difference, it was unintentional" shows that the management was. not sure as to whether the amount offered was accurate. From the contents of the written statement and the affidavit, as also the contentions advanced before the Tribunal and this Court it is clear that the objection of the Management was not as whether there existed pleadings but to the jurisdiction of the Tribunal to examine the legality by expanding the scope of the18 ) THUS, it will be seen that, though, there is a definite injunction against the Court not to entertain the questions which are specifically not raised, the apex Court has permitted to raise certain questions which were directly covered by the provisions in this beneficial legislation. Looking to the overall material placed before us, we are of the considered opinion that the workmen had undoubtedly raised the question of short payment and it was correctly understood by the Management and rightly entertained by the Tribunal. Having so observed, in our opinion, the judgments relied upon by the learned Counsel for the Management are of no avail to the Management.(19 ) IN so far as legal issues I and II are concerned, Mr. C. U. Singh submitted that by now it is well settled that the Tribunal cannot enlarge the scope of the reference by deciding matters not referred to it. In other words, the reference made in the instant case was only to examine as to whether the action was justified and, therefore, going into a legality of the action was wrong and amounts to enlarging the scope of the reference. He placed heavy reliance upon the following judgments in support of his submission. (i) (Delhi Cloth and General Mills v. Their Workmen), 1967 (1) L. L. J. 423, (ii) (Firestone Tyre and Rubber Company v. Workmen), 1981 (3) S. C. C. 451, (iii) (Pottery Mazdoor Panchayat v. Perfect Pottery Company), A. I. R. 1979 s. C. 1356, and (iv) (Sitaram Vishnu Shirodkar v. Administrator, Gout. of Goa), 1985 (1)L. L. J. 480. It was further submitted that legality and justifiability have always been differently understood in industrial adjudication, the former referring to compliance with regulatory provisions of the Act while latter refers to the justification for taking a decision or action against the workmen. Reliance was placed on (Agra Electric Company v. Workmen11, 1983 (1) S. C. C. 436 and (Syndicate bankv. K. Umesh Nayak),a. I. R. 1995 S. C. 319 in support of this submission. In view of the law settled by the Apex Court in the aforesaid judgments and in several other judgments, it was not open to the Tribunal to fall back upon the dictionary meaning of the word "justify" or "justifiable". Reliance was also placed on the judgment of (Workmen of Coimbatore Pioneer "b" Mills v. Labour Court) (1980)1 L. L. J. 503 : (1979)54 F. J. R. 236 (S. C.); (Shankar kishan Nikam v. Bhide and Sons), 1983 (46) F. L. R. 95l industries v. KG. Sawant), 1984 (48) F. L. R. 376 (Bom.) and (Shiv Kumar v. State of Haryana), 1994 (4) S. C. C. 445 in support of this22 ) IT would be useful to reproduce the provisions contained in section 10 (4) of the I. D. Act, which deals with Reference of disputes to Boards, Courts or Tribunals, for better appreciation of the submissions advanced by the learned counsel appearing for the parties. Section 10 (4) reads thus:"10. Reference of disputes to Boards, Courts or Tribunals:(4) Where in an order referring an industrial dispute to a Labour Court, tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto. "it clearly provides that an industrial dispute which has been referred to by the appropriate Government has to specify the points of dispute for adjudication and the Tribunal shall confine its adjudication to those points and the matter incidental thereto. This only means that the Tribunal must confine its attention to the points specifically mentioned and matter which is incidental thereto. However, it would be useful to see as to how the Apex Court, while dealing with this section in (Express Newspapers (P) Ltd. v. The Workers), (1962)23 F. J. R. 1, had looked at it which observed as follows:". . . . . . . Since the jurisdiction of the Industrial Tribunal in dealing with industrial disputes referred to it under section 10 is limited by section 10 (4)to the points specifically mentioned in the reference and matters incidental thereto the appropriate Government should frame the relevant orders of reference carefully and the questions. which are intended to be tried by the Industrial Tribunal should be so worded as to leave no scope for ambiguity or controversy. An order of reference hastily drawn or drawn in a casual manner of ten. gives. risc to unnecessary disputes and thereby prolongs the life of industrial adjudication which must always be avoided Even so. when the qugstion of this kind is raised, before the courts the courts must attempt to construe the reference not too technically or in a pedantic manner, but fairly and reasonably. . . . ". (emphasis supplied)The appropriate Government is, thus, expected to frame the order of reference carefully and the questions, which are intended to be dealt with by the industrial Tribunal, should be worded as to leave no scope for ambiguity. In other words, the appropriate Government, while framing the order of reference, the questions which are raised and intended to be tried by the Tribunal should be framed carefully and not in a casual manner. Even if such questions are raised the Tribunal is not liable to construe them too technically and in a pedantic manner. In the instant case, the demand notice datedgiven by the Union had clearly indicated that the retrenchment in question was illegal and unjustified, though particulars of illegality were not referred to in the notice of demand. However, as observed earlier, the pleadings i. e Statement of claim filed by the Union made, makes it absolutely clear that even the question of legality of the action of retrenchment was also raised by the Union and that the Management was not taken by surprise. However, the management chose to challenge the question of legality, as raised in the statement of claim, contending that the Tribunal cannot enlarge the scope of reference and it was binding on the Tribunal to decide only as to whether the action of retrenchment was "justified". Therefore, in any case, the Management cannot claim that the Tribunal considered the question of legality also without giving an opportunity to the Management or that the Management was taken by surprise. It is thus clear that the Tribunal attempted to construe the reference fairly and reasonably and in a pragmatic manner. The Apex Court in Agra Electric Supply Company Limited (supra), while considering the terms "justified" and "legal" has clearly held that it is plain that industrial jurisprudence is an alloy of law and social justice, and one cannot be too pedantic in construing the terms of a reference respecting a dispute for industrial adjudication. Undoubtedly, the Apex Court in that judgment has also observed that the words "justified" and "legal" are differently understood in the industrial jurisprudence and when the reference is comprehensive enough to cover both these concepts, it is within the jurisdiction of the Tribunal to investigate into whether the retrenchment is legal, if legal, whether it is also justified. However, what is further observed in that judgment is more relevant, which reads thus :"in the ordinary law of contracts, when a thing done is legal there is an end of the matter but in industrial law the rigid rules of contract do not govern the situation and an amount of flexibility in the exercise of powers taking liberties with the strict rights of parties is permitted to Tribunals. Relying on a series of decisions of this Court for this wider ambit of jurisdiction permissible in industrial adjudication, the Tribunal has held that the grievance of the workmen that their services should come to an end by way of retirement without payment of gratuity is real and substantial and that pragmatic considerations justify a direction for payment of gratuity more or less prevalent in many industries in the region. This approach is informed by social justice, and it is not for us to fault the Tribunal when it makes a direction for payment of gratuity. We read the award in a composite and comprehensive sense as an award that the retirement is justified if it is accompanied by payment of gratuity. The dissection attempted in the submission made by the learned Counsel is a distortion of the true intendment of the award". In the present case, the Tribunal has considered the legality of the action holding that the grievance of the workmen was not only against the action but it was against its validity. Action may be justified but it was found to be illegal. The Management did not make any attempt either before the Tribunal or even before this Court to justify the action as legal. On the contrary, the stand of the Management all throughout was that the retrenchment compensation was rightly computed by the Management by applying a divider of 30 days. We have already held that the application of divider of 30 days for computing the retrenchment compensation was not only wrong but it was patently illegal. We have also held that the excess payment made under other heads cannot be taken into account for making the shortfall good. Thus, the tribunal was justified in considering the question of legality or validity of the action. The legality of the action touches the provisions of section(a) and (b) of the I. D. Act. Clause (a) mandates the Management to give a notice before termination and Clause (b) mandates the Management to offer retrenchment compensation which shall be equivalent of 15 days average pay for every completed year of continuous service or any part thereof in excess of six months. These provisions are not only mandatory but imperative in nature. It is against this backdrop the Tribunal, has held that the action was illegal. In any case, in view of the stand of the Management that they rightly applied a divider of 30 days, they cannot now claim that they were taken by surprise and that they did not get an opportunity to meet the question of legality. The learned Single Judge has rightly observed in the impugned order while dismissing the writ petition that "though the reference made by the Government is only regarding justifiability and not legality but in this case finding on Issue no. 2 indicates that the parties went before the Tribunal on both the questions". Mr. Singh, placed reliance upon several judgments of the Apex Court in support of his submission that the Tribunal enlarged the scope of the reference by entering into a question of legality of the action which, in our opinion, are of no avail to the appellant in view of the peculiar facts and circumstances of this case. We have already held that in the facts of the present case, the tribunal was justified in entering into a question of legality also and the tribunal cannot be said to have enlarged the scope of the reference. The submission made by Mr. Singh that though the words "legal" and "justified" are differently understood in industrial adjudication, does not mean that the tribunal in the present case was not justified, in entering into a question of legality of the action which ultimately was found to be patently illegal. In so far as the submission of Mr. Dharap, learned Counsel, based on sectionof the I. D. Act is concerned, we do not propose to examine that submission, though we have our reservations about its correctness, in view of the fact we have already upheld the findings of the Tribunal and which have been affirmed by the learned Single Judge. ( 23 ) THE submission of Mr. Singh that the workmen had confined their allegations to justification and the Managements motive while retrenching them is factually incorrect. We have considered the pleadings in the earlier part of the judgment. They are absolutely clear. The Union had categorically raised an issue of legality in their pleadings and had also led evidence in support thereof. Moreover, the Management chose not to meet the allegation of the Union in respect of legality of the action. It cannot be said that the union had never at any stage prior to the order of reference sought to challenge or even question the legality of action. As a matter of fact, though the illegality was not spelt out in the demand notice, the action was described as illegal. In the circumstances, we have no hesitation in holding that the Tribunal was justified in examining the legality of the action. ( 24 ) THIS takes us to consider the last question as to whether the Tribunal erred in awarding the reinstatement with full back wages after having accepted that all work had come to an end, merely because the question of closure was not referred to it. Mr. Singh submitted that once having found that there was no business transacted after 18. 9. 1991 and even CHA Licence had also expired on 31. 12. 1993 it was clearly not proper for the Tribunal to award reinstatement with full back wages. He further submitted that no relief can be granted beyond the date of closure and that no industrial dispute can survive after the closure. In support of his submission, he placed reliance upon the judgment of the apex Court in (J. K. Synthetics v. Rajasthan Trade Union Kendra), 2001 (2)S. C. C. 87. On the other hand, Mr. Dharap submitted that the Tribunal was wrong in considering the issue of closure and by doing so it travelled beyond the scope of the reference. Theonly in respect of retrenchment and no case was made our by the Management about the closure of the company. He further submitted that since the action of retrenchment, under section(b) was void ob initio, the workmen deemed to be continued in the employment and, therefore, they are entitled for reinstatement with full back wages.( 25 ) THERE was no dispute that after the retrenchment of remaining three workmen on 20. 4. 1992 there was a total closure of the establishment from 30. 4. 1992. It is against this backdrop, we would like to examine the issue raised by Mr. Singh. The Apex Court in J. K. Synthetics (supra) was considering the powers and jurisdiction of the Tribunal while dealing the question as to whether or not the retrenchment was justified. The company in that case was seeking justification of retrenchment of the workmen on the basis that there was a closure of section of its plant. The Tribunal, therefore, went into the question as to whether or not there was a closure for deciding the question as to the legality of retrenchment which the Apex court in that judgment held that there was no error in considering the issue of closure. Paragraph 24 in that judgment may be useful. Paragraph 24 reads thus ;"24. Thus, in our view, the Division Bench erred in coming to the conclusion that the Tribunal could not have gone into the question of closure as it was not referred to it. In our view, on the disputes which have been referred, particularly Dispute No. 2 (set out hereinabove it became absolutely necessary for the Tribunal to first ascertain whether there was a closure and whether such closure was bona fide. "the Apex Court in yet another judgment in Hindustan Steel Works Construction ltd. (supra) considered the question as to whether the reinstatement is must where retrenchment is held to be illegal and/or unjustified. In that case the tribunal had moulded the relief and granted compensation instead of reinstatement. The Apex Court after considering the question involved in that judgment held that the Management was groaning under the weight of surplus and excessiveand as such the Industrial Tribunal was entitled to mould the relief to suit the justice of the case. It would be advantageous to quote paragraph 27 of the judgment which reads thus :"27. The appellants have not been able to satisfy us that the several reasons given by the Tribunal for not directing reinstatement of theare incorrect as a fact or that they are irrelevant or impermissible in law. That theis groaning under the weight of surplus and excessiveis not denied as a fact; indeed, it is an indeniable fact. The Industrial Tribunal is entitled to take note of the said fact and to mould the relief to suit the justice of the case. In exercise of this Courts power under Article 136 of the Constitution, it is not open to us to substitute our opinion for that of the Industrial Tribunal unless we find that the reasons given by it in the paras aforesaid are either incorrect factually or irrelevant or impermissible in law. Since we are not able to say so, these appeals are dismissed. The appeals filed by the Management also fail and are dismissed. No costs. "therefore, in our opinion, once it is found that though the retrenchment was illegal it was justified, it is for the Tribunal to consider what relief the retrenched workers are entitled to. It is open for the Tribunal, in exercise of its jurisdiction, to take note of the circumstances in a particular case and decide not to grant the relief of reinstatement, but grant a relief of compensation to the workmen. In other words, whenever retrenchment is held to be justified, though it is illegal and improper and if their reinstatement is impossible and/or likely to cause great hardship on the management, then the Court can mould the relief to suit the justice and award compensation to such workmen. In the present case, we have no hesitation in holding that the Tribunal was wrong in awarding reinstatement with full back wages after having accepted that all work had come to an end inasmuch as there was a total closure of the establishment and, therefore, the order of Tribunal granting reinstatement was unjustified and liable to be set aside.( 26 ) AFTER having observed that the order of reinstatement was not justified in view of the total closure of the establishment, in our opinion, the ends of justice would be met if the relief of compensation to the workmen is granted. According to Mr. Singh, learned Counsel for the appellant, no business was transacted after 18. 9. 1991 and the CHA Licence also expired on 31. 12. 1993 and, therefore, in any case the workmen are not entitled for any relief beyond the date of closure and/or the date on which the licence had expired. The learned Single Judge, however, while disposing of the writ petition, had observed that if the Management pays the dues upto date on the basis of cut off date being 31. 12. 1995 then the Award will be marked satisfied. This observation was made 011 the basis of the statement of Mr. Dharap, learned Counsel for the workmen. Keeping the submissions advanced by the learned Counsel appearing for the parties in view and considering that this Court, while admitting the Letters Patent Appeal, had directed the management to deposit the arrears of salary upto 31. 12. 1995 in this Court, in our opinion, that amount should be paid to the workmen as compensation. | 1 | 12,375 | 5,037 | ### Instruction:
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placed reliance upon the judgment of the apex Court in (J. K. Synthetics v. Rajasthan Trade Union Kendra), 2001 (2)S. C. C. 87. On the other hand, Mr. Dharap submitted that the Tribunal was wrong in considering the issue of closure and by doing so it travelled beyond the scope of the reference. The reference-was only in respect of retrenchment and no case was made our by the Management about the closure of the company. He further submitted that since the action of retrenchment, under section 25-F (b) was void ob initio, the workmen deemed to be continued in the employment and, therefore, they are entitled for reinstatement with full back wages.( 25 ) THERE was no dispute that after the retrenchment of remaining three workmen on 20. 4. 1992 there was a total closure of the establishment from 30. 4. 1992. It is against this backdrop, we would like to examine the issue raised by Mr. Singh. The Apex Court in J. K. Synthetics (supra) was considering the powers and jurisdiction of the Tribunal while dealing the question as to whether or not the retrenchment was justified. The company in that case was seeking justification of retrenchment of the workmen on the basis that there was a closure of section of its plant. The Tribunal, therefore, went into the question as to whether or not there was a closure for deciding the question as to the legality of retrenchment which the Apex court in that judgment held that there was no error in considering the issue of closure. Paragraph 24 in that judgment may be useful. Paragraph 24 reads thus ;"24. Thus, in our view, the Division Bench erred in coming to the conclusion that the Tribunal could not have gone into the question of closure as it was not referred to it. In our view, on the disputes which have been referred, particularly Dispute No. 2 (set out hereinabove it became absolutely necessary for the Tribunal to first ascertain whether there was a closure and whether such closure was bona fide. "the Apex Court in yet another judgment in Hindustan Steel Works Construction ltd. (supra) considered the question as to whether the reinstatement is must where retrenchment is held to be illegal and/or unjustified. In that case the tribunal had moulded the relief and granted compensation instead of reinstatement. The Apex Court after considering the question involved in that judgment held that the Management was groaning under the weight of surplus and excessive man-power and as such the Industrial Tribunal was entitled to mould the relief to suit the justice of the case. It would be advantageous to quote paragraph 27 of the judgment which reads thus :"27. The appellants have not been able to satisfy us that the several reasons given by the Tribunal for not directing reinstatement of the appellants-workmen are incorrect as a fact or that they are irrelevant or impermissible in law. That the respondent-Corporation is groaning under the weight of surplus and excessive man-power is not denied as a fact; indeed, it is an indeniable fact. The Industrial Tribunal is entitled to take note of the said fact and to mould the relief to suit the justice of the case. In exercise of this Courts power under Article 136 of the Constitution, it is not open to us to substitute our opinion for that of the Industrial Tribunal unless we find that the reasons given by it in the paras aforesaid are either incorrect factually or irrelevant or impermissible in law. Since we are not able to say so, these appeals are dismissed. The appeals filed by the Management also fail and are dismissed. No costs. "therefore, in our opinion, once it is found that though the retrenchment was illegal it was justified, it is for the Tribunal to consider what relief the retrenched workers are entitled to. It is open for the Tribunal, in exercise of its jurisdiction, to take note of the circumstances in a particular case and decide not to grant the relief of reinstatement, but grant a relief of compensation to the workmen. In other words, whenever retrenchment is held to be justified, though it is illegal and improper and if their reinstatement is impossible and/or likely to cause great hardship on the management, then the Court can mould the relief to suit the justice and award compensation to such workmen. In the present case, we have no hesitation in holding that the Tribunal was wrong in awarding reinstatement with full back wages after having accepted that all work had come to an end inasmuch as there was a total closure of the establishment and, therefore, the order of Tribunal granting reinstatement was unjustified and liable to be set aside.( 26 ) AFTER having observed that the order of reinstatement was not justified in view of the total closure of the establishment, in our opinion, the ends of justice would be met if the relief of compensation to the workmen is granted. According to Mr. Singh, learned Counsel for the appellant, no business was transacted after 18. 9. 1991 and the CHA Licence also expired on 31. 12. 1993 and, therefore, in any case the workmen are not entitled for any relief beyond the date of closure and/or the date on which the licence had expired. The learned Single Judge, however, while disposing of the writ petition, had observed that if the Management pays the dues upto date on the basis of cut off date being 31. 12. 1995 then the Award will be marked satisfied. This observation was made 011 the basis of the statement of Mr. Dharap, learned Counsel for the workmen. Keeping the submissions advanced by the learned Counsel appearing for the parties in view and considering that this Court, while admitting the Letters Patent Appeal, had directed the management to deposit the arrears of salary upto 31. 12. 1995 in this Court, in our opinion, that amount should be paid to the workmen as compensation.
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dispute can survive after the closure. In support of his submission, he placed reliance upon the judgment of the apex Court in (J. K. Synthetics v. Rajasthan Trade Union Kendra), 2001 (2)S. C. C. 87. On the other hand, Mr. Dharap submitted that the Tribunal was wrong in considering the issue of closure and by doing so it travelled beyond the scope of the reference. Theonly in respect of retrenchment and no case was made our by the Management about the closure of the company. He further submitted that since the action of retrenchment, under section(b) was void ob initio, the workmen deemed to be continued in the employment and, therefore, they are entitled for reinstatement with full back wages.( 25 ) THERE was no dispute that after the retrenchment of remaining three workmen on 20. 4. 1992 there was a total closure of the establishment from 30. 4. 1992. It is against this backdrop, we would like to examine the issue raised by Mr. Singh. The Apex Court in J. K. Synthetics (supra) was considering the powers and jurisdiction of the Tribunal while dealing the question as to whether or not the retrenchment was justified. The company in that case was seeking justification of retrenchment of the workmen on the basis that there was a closure of section of its plant. The Tribunal, therefore, went into the question as to whether or not there was a closure for deciding the question as to the legality of retrenchment which the Apex court in that judgment held that there was no error in considering the issue of closure. Paragraph 24 in that judgment may be useful. Paragraph 24 reads thus ;"24. Thus, in our view, the Division Bench erred in coming to the conclusion that the Tribunal could not have gone into the question of closure as it was not referred to it. In our view, on the disputes which have been referred, particularly Dispute No. 2 (set out hereinabove it became absolutely necessary for the Tribunal to first ascertain whether there was a closure and whether such closure was bona fide. "the Apex Court in yet another judgment in Hindustan Steel Works Construction ltd. (supra) considered the question as to whether the reinstatement is must where retrenchment is held to be illegal and/or unjustified. In that case the tribunal had moulded the relief and granted compensation instead of reinstatement. The Apex Court after considering the question involved in that judgment held that the Management was groaning under the weight of surplus and excessiveand as such the Industrial Tribunal was entitled to mould the relief to suit the justice of the case. It would be advantageous to quote paragraph 27 of the judgment which reads thus :"27. The appellants have not been able to satisfy us that the several reasons given by the Tribunal for not directing reinstatement of theare incorrect as a fact or that they are irrelevant or impermissible in law. That theis groaning under the weight of surplus and excessiveis not denied as a fact; indeed, it is an indeniable fact. The Industrial Tribunal is entitled to take note of the said fact and to mould the relief to suit the justice of the case. In exercise of this Courts power under Article 136 of the Constitution, it is not open to us to substitute our opinion for that of the Industrial Tribunal unless we find that the reasons given by it in the paras aforesaid are either incorrect factually or irrelevant or impermissible in law. Since we are not able to say so, these appeals are dismissed. The appeals filed by the Management also fail and are dismissed. No costs. "therefore, in our opinion, once it is found that though the retrenchment was illegal it was justified, it is for the Tribunal to consider what relief the retrenched workers are entitled to. It is open for the Tribunal, in exercise of its jurisdiction, to take note of the circumstances in a particular case and decide not to grant the relief of reinstatement, but grant a relief of compensation to the workmen. In other words, whenever retrenchment is held to be justified, though it is illegal and improper and if their reinstatement is impossible and/or likely to cause great hardship on the management, then the Court can mould the relief to suit the justice and award compensation to such workmen. In the present case, we have no hesitation in holding that the Tribunal was wrong in awarding reinstatement with full back wages after having accepted that all work had come to an end inasmuch as there was a total closure of the establishment and, therefore, the order of Tribunal granting reinstatement was unjustified and liable to be set aside.( 26 ) AFTER having observed that the order of reinstatement was not justified in view of the total closure of the establishment, in our opinion, the ends of justice would be met if the relief of compensation to the workmen is granted. According to Mr. Singh, learned Counsel for the appellant, no business was transacted after 18. 9. 1991 and the CHA Licence also expired on 31. 12. 1993 and, therefore, in any case the workmen are not entitled for any relief beyond the date of closure and/or the date on which the licence had expired. The learned Single Judge, however, while disposing of the writ petition, had observed that if the Management pays the dues upto date on the basis of cut off date being 31. 12. 1995 then the Award will be marked satisfied. This observation was made 011 the basis of the statement of Mr. Dharap, learned Counsel for the workmen. Keeping the submissions advanced by the learned Counsel appearing for the parties in view and considering that this Court, while admitting the Letters Patent Appeal, had directed the management to deposit the arrears of salary upto 31. 12. 1995 in this Court, in our opinion, that amount should be paid to the workmen as compensation.
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Ram Chandra Trading Company Vs. State of Uttar Pradesh and Another | This appeal arises out of four agreements executed between the appellant and the respondents. The first agreement related to work of colour washing an area covering 19, 000 sq. mts. The second contract related to white washing of the houses situate in the campus of the second respondent. The third contract related to distempering in the buildings situated in the campus of the medical college covering an area of 21, 500 sq. mts. and the fourth contract related to painting and varnishing of the residences of the buildings situate in the campus of the medical college covering an area of about 4, 000 sq. mts. A dispute having arisen between the parties, the matter was referred to an Arbitrator. The Arbitrator made an Award on 14.8.1990. He gave relief in respect of agreement Nos. 1 and 2 and in respect of agreement Nos. 3 and 4, he held that as the work orders were not issued the appellant was not entitled to any relief for breach of the contract committed by the respondents. When the Award was filed in the Court to pass a decree in terms thereof, objections were filed and, after hearing the parties, the trial Court remitted the matter in respect of agreement Nos. 3 and 4 as it took the view that the Arbitrator had not decided the matter. Aggrieved by that order of the trial Court, an appeal was preferred to the Court of the learned District Judge who allowed the appeal and set aside the order made by the trial Court. Hence, this appeal by special leaveIn the appeal before the learned District Judge an objection was raised that the appeal filed by the Principal of the Maharani Laxmi Bai Medical College is not maintainable and is liable to be dismissed on that ground alone. The learned District Judge held that the trial Court had directed the Arbitrator to make a fresh Award in the light of the directions given in that judgment, it virtually set aside the Award with a direction to the Arbitrator to give a fresh Award, and therefore, fell within the scope of Section 39 of the Arbitration Act [hereinafter referred to as the Act]. The contention raised in the District Court is reiterated before usThis Court in Iftikhar Ahmed and others vs. Syed Meharban Ali and others held that no appeal is provided by the Act against an order of the Court remitting the Award under Section 16 of the Act. Section 39 of the Act opens with a clause that an appeal shall lie from the orders passed as enumerated therein and from no others. The orders enumerated are as follows(i) superseding an arbitration;(ii) on an Award stated in the form of a special case;(iii) modifying or correcting an Award;(iv) filing or refusing to file an arbitration agreement;(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;(vi) setting aside or refusing to set aside an Award;Each of the modes in which a proceeding is disposed of by the Court is dealt within Clauses (i) to (vi) but not an order remitting the matter to the Arbitrator under Section 16 of the Act, the principle being that such a decision would mean referring the matter back to the Arbitrator or it is a case for reconsideration of the matter and no appeal lies in such cases under Section 39 of the Act | 1[ds]In the appeal before the learned District Judge an objection was raised that the appeal filed by the Principal of the Maharani Laxmi Bai Medical College is not maintainable and is liable to be dismissed on that ground alone. The learned District Judge held that the trial Court had directed the Arbitrator to make a fresh Award in the light of the directions given in that judgment, it virtually set aside the Award with a direction to the Arbitrator to give a fresh Award, and therefore, fell within the scope of Section 39 of the Arbitration Act [hereinafter referred to as the Act]. The contention raised in the District Court is reiterated before usThis Court in Iftikhar Ahmed and others vs. Syed Meharban Ali and others held that no appeal is provided by the Act against an order of the Court remitting the Award under Section 16 of the Act. Section 39 of the Act opens with a clause that an appeal shall lie from the orders passed as enumerated therein and from no others. The orders enumerated are as follows(i) superseding an arbitration;(ii) on an Award stated in the form of a special case;(iii) modifying or correcting an Award;(iv) filing or refusing to file an arbitration agreement;(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;(vi) setting aside or refusing to set aside an Award;Each of the modes in which a proceeding is disposed of by the Court is dealt within Clauses (i) to (vi) but not an order remitting the matter to the Arbitrator under Section 16 of the Act, the principle being that such a decision would mean referring the matter back to the Arbitrator or it is a case for reconsideration of the matter and no appeal lies in such cases under Section 39 of the Act | 1 | 632 | 348 | ### 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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This appeal arises out of four agreements executed between the appellant and the respondents. The first agreement related to work of colour washing an area covering 19, 000 sq. mts. The second contract related to white washing of the houses situate in the campus of the second respondent. The third contract related to distempering in the buildings situated in the campus of the medical college covering an area of 21, 500 sq. mts. and the fourth contract related to painting and varnishing of the residences of the buildings situate in the campus of the medical college covering an area of about 4, 000 sq. mts. A dispute having arisen between the parties, the matter was referred to an Arbitrator. The Arbitrator made an Award on 14.8.1990. He gave relief in respect of agreement Nos. 1 and 2 and in respect of agreement Nos. 3 and 4, he held that as the work orders were not issued the appellant was not entitled to any relief for breach of the contract committed by the respondents. When the Award was filed in the Court to pass a decree in terms thereof, objections were filed and, after hearing the parties, the trial Court remitted the matter in respect of agreement Nos. 3 and 4 as it took the view that the Arbitrator had not decided the matter. Aggrieved by that order of the trial Court, an appeal was preferred to the Court of the learned District Judge who allowed the appeal and set aside the order made by the trial Court. Hence, this appeal by special leaveIn the appeal before the learned District Judge an objection was raised that the appeal filed by the Principal of the Maharani Laxmi Bai Medical College is not maintainable and is liable to be dismissed on that ground alone. The learned District Judge held that the trial Court had directed the Arbitrator to make a fresh Award in the light of the directions given in that judgment, it virtually set aside the Award with a direction to the Arbitrator to give a fresh Award, and therefore, fell within the scope of Section 39 of the Arbitration Act [hereinafter referred to as the Act]. The contention raised in the District Court is reiterated before usThis Court in Iftikhar Ahmed and others vs. Syed Meharban Ali and others held that no appeal is provided by the Act against an order of the Court remitting the Award under Section 16 of the Act. Section 39 of the Act opens with a clause that an appeal shall lie from the orders passed as enumerated therein and from no others. The orders enumerated are as follows(i) superseding an arbitration;(ii) on an Award stated in the form of a special case;(iii) modifying or correcting an Award;(iv) filing or refusing to file an arbitration agreement;(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;(vi) setting aside or refusing to set aside an Award;Each of the modes in which a proceeding is disposed of by the Court is dealt within Clauses (i) to (vi) but not an order remitting the matter to the Arbitrator under Section 16 of the Act, the principle being that such a decision would mean referring the matter back to the Arbitrator or it is a case for reconsideration of the matter and no appeal lies in such cases under Section 39 of the Act
### Response:
1
### Explanation:
In the appeal before the learned District Judge an objection was raised that the appeal filed by the Principal of the Maharani Laxmi Bai Medical College is not maintainable and is liable to be dismissed on that ground alone. The learned District Judge held that the trial Court had directed the Arbitrator to make a fresh Award in the light of the directions given in that judgment, it virtually set aside the Award with a direction to the Arbitrator to give a fresh Award, and therefore, fell within the scope of Section 39 of the Arbitration Act [hereinafter referred to as the Act]. The contention raised in the District Court is reiterated before usThis Court in Iftikhar Ahmed and others vs. Syed Meharban Ali and others held that no appeal is provided by the Act against an order of the Court remitting the Award under Section 16 of the Act. Section 39 of the Act opens with a clause that an appeal shall lie from the orders passed as enumerated therein and from no others. The orders enumerated are as follows(i) superseding an arbitration;(ii) on an Award stated in the form of a special case;(iii) modifying or correcting an Award;(iv) filing or refusing to file an arbitration agreement;(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;(vi) setting aside or refusing to set aside an Award;Each of the modes in which a proceeding is disposed of by the Court is dealt within Clauses (i) to (vi) but not an order remitting the matter to the Arbitrator under Section 16 of the Act, the principle being that such a decision would mean referring the matter back to the Arbitrator or it is a case for reconsideration of the matter and no appeal lies in such cases under Section 39 of the Act
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State of Mysore Vs. Alexander Misquith, Etc | Hegde, J.1. These appeals by special leave brought by the State of Mysore raise a common question of law. That question is whether the 1st proviso to Section 3 of Madras Motor Vehicles (Taxation of Passengers and Goods) Act XVI of 1952 is valid. The High Court and the Courts below following certain earlier decisions of the High Courts of Mysore, Madras and Andhra Pradesh have held that proviso is invalid and consequently the passenger transport operators who have been compelled to pay tax under Section 3 of the aforementioned Act are entitled to the refund of the tax paid by them.2. The respondents in these appeals were passenger transport operators plying their buses in the District of South Kanara which district till November 1, 1956 was a part of the former State of Madras and thereafter became a part of the new State of Mysore. The State Legislature of Madras enacted Madras Motor Vehicles (Taxation of Passengers and Goods) Act XVI of 1952 and on the strength of the provisions of that Act levied and collected certain taxes from the operators. Thereafter the operators sued the State of Madras for refund of those taxes. After reorganization of the State in 1956, the State of Mysore was substituted for the State of Madras. As mentioned earlier the High Court as well as the Courts below have upheld the claims of the operators.3. The question of law raised in these appeals has become academic, the impugned provision being no more in operation. The claims involved in these appeals are by no means substantial. They range between Rs. 852.25 P. and Rupees 2652.37 P. Hence we do not think that these are fit cases in which this Court should exercise its special and discretionary jurisdiction under Article 136 of the Constitution. For that reason we decline to go into the merits of the contentions advanced in these cases. | 0[ds]3. The question of law raised in these appeals has become academic, the impugned provision being no more in operation. The claims involved in these appeals are by no means substantial. They range between Rs. 852.25 P. and Rupees 2652.37 P. Hence we do not think that these are fit cases in which this Court should exercise its special and discretionary jurisdiction under Article 136 of the Constitution. For that reason we decline to go into the merits of the contentions advanced in these cases. | 0 | 339 | 96 | ### 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:
Hegde, J.1. These appeals by special leave brought by the State of Mysore raise a common question of law. That question is whether the 1st proviso to Section 3 of Madras Motor Vehicles (Taxation of Passengers and Goods) Act XVI of 1952 is valid. The High Court and the Courts below following certain earlier decisions of the High Courts of Mysore, Madras and Andhra Pradesh have held that proviso is invalid and consequently the passenger transport operators who have been compelled to pay tax under Section 3 of the aforementioned Act are entitled to the refund of the tax paid by them.2. The respondents in these appeals were passenger transport operators plying their buses in the District of South Kanara which district till November 1, 1956 was a part of the former State of Madras and thereafter became a part of the new State of Mysore. The State Legislature of Madras enacted Madras Motor Vehicles (Taxation of Passengers and Goods) Act XVI of 1952 and on the strength of the provisions of that Act levied and collected certain taxes from the operators. Thereafter the operators sued the State of Madras for refund of those taxes. After reorganization of the State in 1956, the State of Mysore was substituted for the State of Madras. As mentioned earlier the High Court as well as the Courts below have upheld the claims of the operators.3. The question of law raised in these appeals has become academic, the impugned provision being no more in operation. The claims involved in these appeals are by no means substantial. They range between Rs. 852.25 P. and Rupees 2652.37 P. Hence we do not think that these are fit cases in which this Court should exercise its special and discretionary jurisdiction under Article 136 of the Constitution. For that reason we decline to go into the merits of the contentions advanced in these cases.
### Response:
0
### Explanation:
3. The question of law raised in these appeals has become academic, the impugned provision being no more in operation. The claims involved in these appeals are by no means substantial. They range between Rs. 852.25 P. and Rupees 2652.37 P. Hence we do not think that these are fit cases in which this Court should exercise its special and discretionary jurisdiction under Article 136 of the Constitution. For that reason we decline to go into the merits of the contentions advanced in these cases.
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Union of India & Others Vs. M/s. Master Construction Co | full and final discharge voucher or no-dues certificate of that kind amounts to discharge of the contract by acceptance or performance and the party issuing the discharge voucher/certificate cannot thereafter make any fresh claim or revive any settled claim nor can it seek reference to arbitration in respect of any claim.22. In paragraph 26 (pages 284-285), this Court in Boghara Polyfab Private Limited held that if a party which has executed the discharge agreement or discharge voucher, alleges that the execution of such document was on account of fraud/coercion/undue influence practised by the other party, and if that party establishes the same, then such discharge voucher or agreement is rendered void and cannot be acted upon and consequently, any dispute raised by such party would be arbitrable.23. In paragraph 24 (page 284) in Boghara Polyfab Private Limited1, this Court held that a claim for arbitration cannot be rejected merely or solely on the ground that a settlement agreement or discharge voucher has been executed by the claimant. The Court stated that such dispute will have to be decided by the Chief Justice/his designate in the proceedings under Section 11 of the 1996 Act or by the Arbitral Tribunal.24. In our opinion, there is no rule of the absolute kind. In a case where the claimant contends that a discharge voucher or no-claim certificate has been obtained by fraud, coercion, duress or undue influence and the other side contests the correctness thereof, the Chief Justice/his designate must look into this aspect to find out at least, prima facie, whether or not the dispute is bona fide and genuine. Where the dispute raised by the claimant with regard to validity of the discharge voucher or no-claim certificate or settlement agreement, prima facie, appears to be lacking in credibility, there may not be necessity to refer the dispute for arbitration at all. It cannot be overlooked that the cost of arbitration is quite huge - most of the time, it runs in six and seven figures. It may not be proper to burden a party, who contends that the dispute is not arbitrable on account of discharge of contract, with huge cost of arbitration merely because plea of fraud, coercion, duress or undue influence has been taken by the claimant. A bald plea of fraud, coercion, duress or undue influence is not enough and the party who sets up such plea must prima facie establish the same by placing material before the Chief Justice/his designate. If the Chief Justice/his designate finds some merit in the allegation of fraud, coercion, duress or undue influence, he may decide the same or leave it to be decided by the Arbitral Tribunal. On the other hand, if such plea is found to be an after-thought, make-believe or lacking in credibility, the matter must be set at rest then and there.25. In light of the above legal position, we now turn to the facts of the present case.26. At the time of receiving payment on account of final bill, the contractor executed the certificate in the following terms : "a) I/we hereby certify that I/we have performed the work under the condition of the contract agreement No. CEBTZ-14/95-96, for which payment is claimed and that I/we have no further claims under CA No. CEBTZ-14/95-96.b) Received rupees two lakhs fifteen thousand one hundred seventy eight only. This payment is in full and final settlement of all money dues under CA No. CEBTZ-14/95-96 and I have no further claims in respect of the CA No. CEBTZ-14/95-96." (emphasis supplied by us)27. The contractor also appended the following certificate: "It is certified that I have prepared this final bill for claiming entire payment due to me from this contract agreement. The final bill includes all claims raised by me from time to time irrespective of the fact whether they are admitted/accepted by the department or not. I now categorically certify that I have no more claim in respect of this contract beyond those already included in this final bill by me and the amount so claimed by me shall be in full and final satisfaction of all my claims under this contract agreement. I shall however, receive my right to raise claim to the extent disallowed to me from this final bill."28. The above certificates leave no manner of doubt that upon receipt of the payment, there has been full and final settlement of the contractors claim under the contract. That the payment of final bill was made to the contractor on June 19, 2000 is not in dispute. After receipt of the payment on June 19, 2000, no grievance was raised or lodged by the contractor immediately. The concerned authority, thereafter, released the bank guarantee in the sum of Rs. 21,00,000/- on July 12, 2000. It was then that on that day itself, the contractor lodged further claims.29. The present, in our opinion, appears to be a case falling in the category of exception noted in the case of Boghara Polyfab Private Limited (Para 25, page 284). As to financial duress or coercion, nothing of this kind is established prima facie. Mere allegation that no-claim certificates have been obtained under financial duress and coercion, without there being anything more to suggest that, does not lead to an arbitrable dispute. 30. The conduct of the contractor clearly shows that `no claim certificates were given by it voluntarily; the contractor accepted the amount voluntarily and the contract was discharged voluntarily. 31. We are, thus, unable to sustain the order of the Chief Justice in the proceedings under Section 11(6) of the 1996 Act. In view of our finding above, it is not necessary to consider the alternative submission made by the senior counsel for the appellants that the Chief Justice in exercise of his power under Section 11(6) ought to have appointed the arbitrator in terms of the arbitration clause and the appointment of Mr. M.S. Liberahan, retired Chief Justice of Andhra Pradesh High Court, was not in accord with the arbitration agreement. | 1[ds]19. In Boghara Polyfab Private Limited, this Court surveyed a large number of earlier decisions of this Court, namely, The Union of India v. Kishorilal Gupta & Bros (AIR (1959) SC 1362 )., The Naihati Jute Mills Ltd. v. Khyaliram Jagannath (AIR (1968) SC 522 ), Damodar Valley Corporation v. K.K. Kar ((1974) 1 SCC 141 ), M/s. Bharat Heavy Electricals Limited, Ranipur v. M/s. Amar Nath Bhan Prakash ((1982) 1 SCC 625 ), Union of India & Anr. v. M/s. L.K. Ahuja & Co. ((1988) 3 SCC 76 ), State of Maharashtra v. Nav Bharat Builders (1994 Supp (3) SCC 83), M/s. P.K. Ramaiah & Company v. Chairman & Managing Director, National Thermal Power Corpn. (1994 Supp (3) SCC 126), Nathani Steels Ltd. v. Associated Constructions (1995 Supp (3) SCC 324), Indian Drugs & Pharmaceuticals Ltd. v. Indo Swiss Synthetics Gem Mfg. Co. Ltd. & Ors. ((1996) 1 SCC 54 ), United India Insurance v. Ajmer Singh Cotton & General Mills & Ors. ((1999) 6 SCC 400 ), Jayesh Engineering Works v. New India Assurance Co. Ltd. ((2000) 10 SCC 178), SBP & Co. v. Patel Engineering Ltd. & Anr.( (2005) 8 SCC 618 ), National Insurance Co. Ltd. v. Nipha Exports (P) Ltd. ((2006) 8 SCC 156 ) and National Insurance Company Limited v. Sehtia Shoes ((2008) 5 SCC 400 ). With regard to the jurisdiction of the Chief Justice/his designate in the proceedings under Section 11 of the 1996 Act, this Court culled out the legal position in paragraph 51 (page 294) of the report as followsThe Chief Justice/his designate exercising jurisdiction under Section 11 of the Act will consider whether there was really accord and satisfaction or discharge of contract by performance. If the answer is in the affirmative, he will refuse to refer the dispute to arbitration. On the other hand, if the Chief Justice/his designate comes to the conclusion that the full and final settlement receipt or discharge voucher was the result of any fraud/coercion/ undue influence, he will have to hold that there was no discharge of the contract and consequently, refer the dispute to arbitration. Alternatively, where the Chief Justice/his designate is satisfied prima facie that the discharge voucher was not issued voluntarily and the claimant was under some compulsion or coercion, and that the matter deserved detailed consideration, he may instead of deciding the issue himself, refer the matter to the Arbitral Tribunal with a specific direction that the said question should be decided in the first instance.The Bench in Boghara Polyfab Private Limited in paragraphs 42 and 43 (page 291), with reference to the cases cited before it, inter alia, noted that there were two categories of the cited cases; (one) where the Court after considering the facts found that there was a full and final settlement resulting in accord and satisfaction, and there was no substance in the allegations of coercion/undue influence and, consequently, it was held that there could be no reference of any dispute to arbitration and (two) where the court found some substance in the contention of the claimants that `no dues/claim certificates or `full and final settlement discharge vouchers were insisted and taken (either in printed format or otherwise) as a condition precedent for release of the admitted dues and thereby giving rise to an arbitrable dispute.21. In Boghara Polyfab Private Limited, the consequences of discharge of the contract were also considered. In para 25 (page 284), it was explained that when a contract has been fully performed, then there is a discharge of the contract by performance 10and the contract comes to an end and in regard to such a discharged contract, nothing remains and there cannot be any dispute and, consequently, there cannot be reference to arbitration of any dispute arising from a discharged contract. It was held that the question whether the contract has been discharged by performance or not is a mixed question of fact and law, and if there is a dispute in regard to that question, such question is arbitrable. The Court, however, noted an exception to this proposition. The exception noticed is that where both the parties to a contract confirm in writing that the contract has been fully and finally discharged by performance of all obligations and there are no outstanding claims or disputes, courts will not refer any subsequent claim or dispute to arbitration. Yet another exception noted therein is with regard to those cases where one of the parties to the contract issues a full and final discharge voucher (or no-dues certificate, as the case may be) confirming that he has received the payment in full and final satisfaction of all claims, and he has no outstanding claim. It was observed that issuance of full and final discharge voucher or no-dues certificate of that kind amounts to discharge of the contract by acceptance or performance and the party issuing the discharge voucher/certificate cannot thereafter make any fresh claim or revive any settled claim nor can it seek reference to arbitration in respect of any claim.22. In paragraph 26 (pages 284-285), this Court in Boghara Polyfab Private Limited held that if a party which has executed the discharge agreement or discharge voucher, alleges that the execution of such document was on account of fraud/coercion/undue influence practised by the other party, and if that party establishes the same, then such discharge voucher or agreement is rendered void and cannot be acted upon and consequently, any dispute raised by such party would be arbitrable.23. In paragraph 24 (page 284) in Boghara Polyfab Private Limited1, this Court held that a claim for arbitration cannot be rejected merely or solely on the ground that a settlement agreement or discharge voucher has been executed by the claimant. The Court stated that such dispute will have to be decided by the Chief Justice/his designate in the proceedings under Section 11 of the 1996 Act or by the Arbitral Tribunal.24. In our opinion, there is no rule of the absolute kind. In a case where the claimant contends that a discharge voucher or no-claim certificate has been obtained by fraud, coercion, duress or undue influence and the other side contests the correctness thereof, the Chief Justice/his designate must look into this aspect to find out at least, prima facie, whether or not the dispute is bona fide and genuine. Where the dispute raised by the claimant with regard to validity of the discharge voucher or no-claim certificate or settlement agreement, prima facie, appears to be lacking in credibility, there may not be necessity to refer the dispute for arbitration at all. It cannot be overlooked that the cost of arbitration is quite huge - most of the time, it runs in six and seven figures. It may not be proper to burden a party, who contends that the dispute is not arbitrable on account of discharge of contract, with huge cost of arbitration merely because plea of fraud, coercion, duress or undue influence has been taken by the claimant. A bald plea of fraud, coercion, duress or undue influence is not enough and the party who sets up such plea must prima facie establish the same by placing material before the Chief Justice/his designate. If the Chief Justice/his designate finds some merit in the allegation of fraud, coercion, duress or undue influence, he may decide the same or leave it to be decided by the Arbitral Tribunal. On the other hand, if such plea is found to be an after-thought, make-believe or lacking in credibility, the matter must be set at rest then and there.25. In light of the above legal position, we now turn to the facts of the present case.26. At the time of receiving payment on account of final bill, the contractor executed the certificate in the following termsI/we hereby certify that I/we have performed the work under the condition of the contract agreement No. CEBTZ-14/95-96, for which payment is claimed and that I/we have no further claims under CA No. CEBTZ-14/95-96.b) Received rupees two lakhs fifteen thousand one hundred seventy eight only. This payment is in full and final settlement of all money dues under CA No. CEBTZ-14/95-96 and I have no further claims in respect of the CA No.supplied by us)27. The contractor also appended the following certificate: "It is certified that I have prepared this final bill for claiming entire payment due to me from this contract agreement. The final bill includes all claims raised by me from time to time irrespective of the fact whether they are admitted/accepted by the department or not. I now categorically certify that I have no more claim in respect of this contract beyond those already included in this final bill by me and the amount so claimed by me shall be in full and final satisfaction of all my claims under this contract agreement. I shall however, receive my right to raise claim to the extent disallowed to me from this final bill."28. The above certificates leave no manner of doubt that upon receipt of the payment, there has been full and final settlement of the contractors claim under the contract. That the payment of final bill was made to the contractor on June 19, 2000 is not in dispute. After receipt of the payment on June 19, 2000, no grievance was raised or lodged by the contractor immediately. The concerned authority, thereafter, released the bank guarantee in the sum of Rs. 21,00,000/- on July 12, 2000. It was then that on that day itself, the contractor lodged further claims.29. The present, in our opinion, appears to be a case falling in the category of exception noted in the case of Boghara Polyfab Private Limited (Para 25, page 284). As to financial duress or coercion, nothing of this kind is established prima facie. Mere allegation that no-claim certificates have been obtained under financial duress and coercion, without there being anything more to suggest that, does not lead to an arbitrable dispute.We are, thus, unable to sustain the order of the Chief Justice in the proceedings under Section 11(6) of the 1996 Act. In view of our finding above, it is not necessary to consider the alternative submission made by the senior counsel for the appellants that the Chief Justice in exercise of his power under Section 11(6) ought to have appointed the arbitrator in terms of the arbitration clause and the appointment of Mr. M.S. Liberahan, retired Chief Justice of Andhra Pradesh High Court, was not in accord with the arbitration agreement. | 1 | 3,733 | 2,001 | ### 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:
full and final discharge voucher or no-dues certificate of that kind amounts to discharge of the contract by acceptance or performance and the party issuing the discharge voucher/certificate cannot thereafter make any fresh claim or revive any settled claim nor can it seek reference to arbitration in respect of any claim.22. In paragraph 26 (pages 284-285), this Court in Boghara Polyfab Private Limited held that if a party which has executed the discharge agreement or discharge voucher, alleges that the execution of such document was on account of fraud/coercion/undue influence practised by the other party, and if that party establishes the same, then such discharge voucher or agreement is rendered void and cannot be acted upon and consequently, any dispute raised by such party would be arbitrable.23. In paragraph 24 (page 284) in Boghara Polyfab Private Limited1, this Court held that a claim for arbitration cannot be rejected merely or solely on the ground that a settlement agreement or discharge voucher has been executed by the claimant. The Court stated that such dispute will have to be decided by the Chief Justice/his designate in the proceedings under Section 11 of the 1996 Act or by the Arbitral Tribunal.24. In our opinion, there is no rule of the absolute kind. In a case where the claimant contends that a discharge voucher or no-claim certificate has been obtained by fraud, coercion, duress or undue influence and the other side contests the correctness thereof, the Chief Justice/his designate must look into this aspect to find out at least, prima facie, whether or not the dispute is bona fide and genuine. Where the dispute raised by the claimant with regard to validity of the discharge voucher or no-claim certificate or settlement agreement, prima facie, appears to be lacking in credibility, there may not be necessity to refer the dispute for arbitration at all. It cannot be overlooked that the cost of arbitration is quite huge - most of the time, it runs in six and seven figures. It may not be proper to burden a party, who contends that the dispute is not arbitrable on account of discharge of contract, with huge cost of arbitration merely because plea of fraud, coercion, duress or undue influence has been taken by the claimant. A bald plea of fraud, coercion, duress or undue influence is not enough and the party who sets up such plea must prima facie establish the same by placing material before the Chief Justice/his designate. If the Chief Justice/his designate finds some merit in the allegation of fraud, coercion, duress or undue influence, he may decide the same or leave it to be decided by the Arbitral Tribunal. On the other hand, if such plea is found to be an after-thought, make-believe or lacking in credibility, the matter must be set at rest then and there.25. In light of the above legal position, we now turn to the facts of the present case.26. At the time of receiving payment on account of final bill, the contractor executed the certificate in the following terms : "a) I/we hereby certify that I/we have performed the work under the condition of the contract agreement No. CEBTZ-14/95-96, for which payment is claimed and that I/we have no further claims under CA No. CEBTZ-14/95-96.b) Received rupees two lakhs fifteen thousand one hundred seventy eight only. This payment is in full and final settlement of all money dues under CA No. CEBTZ-14/95-96 and I have no further claims in respect of the CA No. CEBTZ-14/95-96." (emphasis supplied by us)27. The contractor also appended the following certificate: "It is certified that I have prepared this final bill for claiming entire payment due to me from this contract agreement. The final bill includes all claims raised by me from time to time irrespective of the fact whether they are admitted/accepted by the department or not. I now categorically certify that I have no more claim in respect of this contract beyond those already included in this final bill by me and the amount so claimed by me shall be in full and final satisfaction of all my claims under this contract agreement. I shall however, receive my right to raise claim to the extent disallowed to me from this final bill."28. The above certificates leave no manner of doubt that upon receipt of the payment, there has been full and final settlement of the contractors claim under the contract. That the payment of final bill was made to the contractor on June 19, 2000 is not in dispute. After receipt of the payment on June 19, 2000, no grievance was raised or lodged by the contractor immediately. The concerned authority, thereafter, released the bank guarantee in the sum of Rs. 21,00,000/- on July 12, 2000. It was then that on that day itself, the contractor lodged further claims.29. The present, in our opinion, appears to be a case falling in the category of exception noted in the case of Boghara Polyfab Private Limited (Para 25, page 284). As to financial duress or coercion, nothing of this kind is established prima facie. Mere allegation that no-claim certificates have been obtained under financial duress and coercion, without there being anything more to suggest that, does not lead to an arbitrable dispute. 30. The conduct of the contractor clearly shows that `no claim certificates were given by it voluntarily; the contractor accepted the amount voluntarily and the contract was discharged voluntarily. 31. We are, thus, unable to sustain the order of the Chief Justice in the proceedings under Section 11(6) of the 1996 Act. In view of our finding above, it is not necessary to consider the alternative submission made by the senior counsel for the appellants that the Chief Justice in exercise of his power under Section 11(6) ought to have appointed the arbitrator in terms of the arbitration clause and the appointment of Mr. M.S. Liberahan, retired Chief Justice of Andhra Pradesh High Court, was not in accord with the arbitration agreement.
### Response:
1
### Explanation:
discharge voucher (or no-dues certificate, as the case may be) confirming that he has received the payment in full and final satisfaction of all claims, and he has no outstanding claim. It was observed that issuance of full and final discharge voucher or no-dues certificate of that kind amounts to discharge of the contract by acceptance or performance and the party issuing the discharge voucher/certificate cannot thereafter make any fresh claim or revive any settled claim nor can it seek reference to arbitration in respect of any claim.22. In paragraph 26 (pages 284-285), this Court in Boghara Polyfab Private Limited held that if a party which has executed the discharge agreement or discharge voucher, alleges that the execution of such document was on account of fraud/coercion/undue influence practised by the other party, and if that party establishes the same, then such discharge voucher or agreement is rendered void and cannot be acted upon and consequently, any dispute raised by such party would be arbitrable.23. In paragraph 24 (page 284) in Boghara Polyfab Private Limited1, this Court held that a claim for arbitration cannot be rejected merely or solely on the ground that a settlement agreement or discharge voucher has been executed by the claimant. The Court stated that such dispute will have to be decided by the Chief Justice/his designate in the proceedings under Section 11 of the 1996 Act or by the Arbitral Tribunal.24. In our opinion, there is no rule of the absolute kind. In a case where the claimant contends that a discharge voucher or no-claim certificate has been obtained by fraud, coercion, duress or undue influence and the other side contests the correctness thereof, the Chief Justice/his designate must look into this aspect to find out at least, prima facie, whether or not the dispute is bona fide and genuine. Where the dispute raised by the claimant with regard to validity of the discharge voucher or no-claim certificate or settlement agreement, prima facie, appears to be lacking in credibility, there may not be necessity to refer the dispute for arbitration at all. It cannot be overlooked that the cost of arbitration is quite huge - most of the time, it runs in six and seven figures. It may not be proper to burden a party, who contends that the dispute is not arbitrable on account of discharge of contract, with huge cost of arbitration merely because plea of fraud, coercion, duress or undue influence has been taken by the claimant. A bald plea of fraud, coercion, duress or undue influence is not enough and the party who sets up such plea must prima facie establish the same by placing material before the Chief Justice/his designate. If the Chief Justice/his designate finds some merit in the allegation of fraud, coercion, duress or undue influence, he may decide the same or leave it to be decided by the Arbitral Tribunal. On the other hand, if such plea is found to be an after-thought, make-believe or lacking in credibility, the matter must be set at rest then and there.25. In light of the above legal position, we now turn to the facts of the present case.26. At the time of receiving payment on account of final bill, the contractor executed the certificate in the following termsI/we hereby certify that I/we have performed the work under the condition of the contract agreement No. CEBTZ-14/95-96, for which payment is claimed and that I/we have no further claims under CA No. CEBTZ-14/95-96.b) Received rupees two lakhs fifteen thousand one hundred seventy eight only. This payment is in full and final settlement of all money dues under CA No. CEBTZ-14/95-96 and I have no further claims in respect of the CA No.supplied by us)27. The contractor also appended the following certificate: "It is certified that I have prepared this final bill for claiming entire payment due to me from this contract agreement. The final bill includes all claims raised by me from time to time irrespective of the fact whether they are admitted/accepted by the department or not. I now categorically certify that I have no more claim in respect of this contract beyond those already included in this final bill by me and the amount so claimed by me shall be in full and final satisfaction of all my claims under this contract agreement. I shall however, receive my right to raise claim to the extent disallowed to me from this final bill."28. The above certificates leave no manner of doubt that upon receipt of the payment, there has been full and final settlement of the contractors claim under the contract. That the payment of final bill was made to the contractor on June 19, 2000 is not in dispute. After receipt of the payment on June 19, 2000, no grievance was raised or lodged by the contractor immediately. The concerned authority, thereafter, released the bank guarantee in the sum of Rs. 21,00,000/- on July 12, 2000. It was then that on that day itself, the contractor lodged further claims.29. The present, in our opinion, appears to be a case falling in the category of exception noted in the case of Boghara Polyfab Private Limited (Para 25, page 284). As to financial duress or coercion, nothing of this kind is established prima facie. Mere allegation that no-claim certificates have been obtained under financial duress and coercion, without there being anything more to suggest that, does not lead to an arbitrable dispute.We are, thus, unable to sustain the order of the Chief Justice in the proceedings under Section 11(6) of the 1996 Act. In view of our finding above, it is not necessary to consider the alternative submission made by the senior counsel for the appellants that the Chief Justice in exercise of his power under Section 11(6) ought to have appointed the arbitrator in terms of the arbitration clause and the appointment of Mr. M.S. Liberahan, retired Chief Justice of Andhra Pradesh High Court, was not in accord with the arbitration agreement.
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Godavari Sugar Mills Ltd. And Ors Vs. S. B. Kamble And Ors | landless persons or poor peasants is an essential attribute of agrarian reform and that as the lands of the industrial undertakings are not to be distributed but have to be cultivated by the Farming Corporation owned by the State, the acquisition cannot be considered to be a measure of agrarian reform. We are not impressed by this argument. Acquisition of land held by industrial undertakings is not to be taken in isolation but as a part of the general scheme and object of the Act that there should be a ceiling on private holdings. While surplus lands of individuals are to be distributed, the legislature has made special provision in respect of land held by an industrial undertaking which had been cultivated for supplying raw material to the industrial undertaking. It has been provided in the case of such land that it should be cultivated by the Farming Corporation in an efficient manner so that the supply of raw material to the Industrial undertaking might not be affected. It is no doubt, true that distribution of acquired land among landless persons and poor peasants in a vast majority of cases is a part of the scheme of agrarian reform; the fact that in the case of some huge tract of land which is used for a particular purpose the statute in order to prevent its fragmentation and to subserve that purpose provides that it should be cultivated by a State owned farming corporation would not justify the inference that the statutory requirement in this respect is not a part of a general scheme of agrarian reform. Section 28-1AA does not operate in a vacuum. The Section has to be taken in its context and setting with the other provisions of the Act. If the provisions of the Act seek to remove economic imbalance by taking the surplus lands of holders in excess of a ceiling and if the provisions of the Act further contemplate that most of the lands after acquisition be distributed to poor peasants and landless persons, the fact that a few blocks of land because of their size and past use for cultivation of raw material for industrial undertakings are required under the provisions of the Act to be not fragmented, which would inevitably be the result if they were to be distributed like other lands acquired under the Act, but to be retained as compact blocks for being cultivated by, the farming corporation so that the industrial undertakings are not starved of the raw material, the last mentioned provision cannot be detached from the rest of the Act and struck down as being not a measure of agrarian reform. It is no doubt true that acquisition simpliciter of the land by the State to augment its resources and without specifying the purpose for which it is to be used after acquisition would not get the protection of Art. 31A. To decide the question of protection we must look at the general scheme of the statute containing provision for the acquisition, the object of the acquisition and the reasons which weigh for retaining the land with the State or its corporation and not distributing it among the landless persons and the poor peasants. The concept of agrarian reform, it needs to be emphasised, is not static and cannot always be put in a strait-jacket. With the change of times under the impact of fresh ideas and in the context of fresh situations, the concept of agrarian reform is bound to acquire new dimensions. A measure which has the effect of improving the rural economy or promoting rural welfare would be a part of agrarian reform Although in most of the cases, as already mentioned the agrarian reform would require distribution of surplus land among the poor peasants and landless persons living in the villages, situations might well arise where it would be in the interest of rural economy that any compact area of land instead of being fragmented by distribution should be preserved as one compact block and be cultivated by a State owned farming corporation. The fact that part of the acquired land would remain vested in the State Government or State-owned farming corporation would not militate against the object of agrarian reform if the continued vesting of the land in the Government or the Corporation is a part of a general of agrarian reform and there is no oblique deviation from the avowed purpose.In the case of Ranjit Singh v. State of Punjab (supra), part of the acquired land was to vest in the State Government for schools, playgrounds, dispensaries, hospitals, waterworks, tubewells and as the above vesting was a part of a general scheme of rural welfare, the statute providing for that vesting was upheld and afforded the protection of article 31A.Ancillary provisions to give full effect to a scheme of agrarian reform, it may be stressed, would also have the protection of Art. 31A.33. We may note that argument has also been advanced by the learned Attorney General regarding the locus standi of the appellants to file the petition giving rise to the present appeal. It is urged that the appellants have no locus standi to file the petition in respect of land measuring 10315 acres as unconditional possession thereof was delivered in May 1968. In the alternative, it is submitted that clause (5) of Sec. 21 of the impugned Act which was introduced by amending Act 27 of 1970 is severable from the other provisions of the amending Act and is in any case constitutionally valid. As land measuring 10315 acres in accordance with the above clause had already vested before the filing of the petition in the State Government the appellants had no locus standi to file petition in respect of that area of land. It is, in our opinion, not necessary to express an opinion on the above submissions of the Attorney General in view of our finding that the impugned provisions are protected by Article 31A of the Constitution. | 0[ds]14. We have given the matter our consideration and are unable to agree with the above conclusion of the High Court Articleabove article was inserted in the Constitution by the First Amendment. The object of this article is to give a blanket protection to the Acts and Regulations specified in the Ninth Schedule and the provisions of those Acts and Regulations against any cha1lenge to those Acts, Regulations or the provisions thereof on the ground that they are inconsistent with or take away or abridge any of the rights conferred by, Part III of the Constitution. The result is that howsoever violative of the fundamental rights may be the provisions of an Act or Regulation once the Act or Regulation is specified in the Ninth Schedule it would not be liable to be struck down on that score. This immunity against the above challenge would be available notwithstanding any judgment, decree or order of any Court or tribunal to the contrary. The effect of Article 31B, however, is not to prevent challenge to an enactment on the ground that it is beyond the legislative competence of the legislature which enacted it. It is also plain from the language of the article that the specification of an Act or Regulation would not prevent the competent legislature to repeal or amend it.The protection of Art. 31B can also not be extended to a new provision inserted as a result of amendment on the ground that it is ancillary or incidental to the provisions to which protection has already been afforded by including them in the Ninth Schedule. Article 31B carves out a protected zone. It has inserted Ninth Schedule in the Constitution and gives immunity to the Acts, Regulations and provisions specified in the said schedule from being struck down on the ground of infringement of fundamental rights even though they are violative of such rights. Article 3lB thus excludes the operation of fundamental rights in matters dealt with by those Acts, Regulations and provisions. Any provision which has the effect of making an inroad into the guarantee of fundamental rights in the very nature of things should be construed very strictly, and it would not, in our opinion, be permissible to widen the scope of such a provision or to extend the frontiers of the protected zone beyond what is warranted by the language of the provision. No Act, Regulation or provision would enjoy immunity and protection of Article 31B unless it is expressly made a part of the Ninth Schedule. The entitlement to protection being confined only to the Acts, Regulations and provisions mentioned in the Ninth Schedule, it cannot be extended to provisions which were not included in that schedule. This principle would hold good irrespective of the fact whether the provision to which entitlement to protection is sought to be extended deals with new substantive matters or whether it deals with matters which are incidental or ancillary to those already protected.17. We are fortified in the above conclusion by the previous decisions of this Court.It is now well established that before the protection of Art. 31A can be afforded to the acquisition of any land by the State, the acquisition should be for the purpose of agrarian reform.The following principles can be inferred from the decided cases in order to find whetheran impugned enactment for acquisition of land is protected by Article31A:1) Acquisition of land by the State in order to enjoy the protection of Article 31A should be for the purpose of agrarian reform. 2) Acquisition of land by taking it from a senior member of the family and giving it to a junior member is not a measure of agrarian reform.3) Acquisition of land for urban slum clearance or for a housing scheme in neighbourhood of a big city is not a measure of a agrarian reform.4) Acquisition of land by the State without specifying the purpose for which land is to be used is not a measure of agrarian reform.5) Scheme of rural development envisages not only equitable distribution of land but also raising of economic standards and bettering of rural health and social conditions in the villages. Provision for the assignment of land to a Panchayat for the use of the general community or for hospitals, schools, manure pits, tanning grounds enure for the benefit of the rural population and as such constitute a measure of agrarian reform.6) Provision for reservation of land for promotion of agriculture and for the welfare of agricultural population constitutes a measure of agrarian reform. Agrarian reform is wider than land reform.7) If the dominant and general purpose of the scheme is agrarian reform, the scheme may provide for ancillary provisions to give full effect to the scheme.8) A provision fixing ceiling area and providing for the disposal of surplus land in accordance with the rules is a measure of agrarian reform.It would appear from the preamble to amending Act 27 of 1970 and the affidavit of Shri I. G. Karandikar, Under Secretary to Government of Maharashtra that efforts to set up joint farming societies contemplated by Section 28 of the Act did not bear fruit in spite of the fact that the time for the setting up of those societies was extended.Conspectus of the different provisions of the impugned Act, in our opinion, goes to show that the main purpose of the Act was to prevent concentration of agriculture land in the hands of a few. A ceiling was consequently imposed regarding the extent of land which might be held by an individual. Surplus land was distributed in accordance with Section 27 of the Act. It cannot be disputed that the provisions of the impugned Act in so far as the above objects were concerned effectuated the object of agrarian reform. As regards lands which were held by the industrial undertakings for the purpose producing and providing raw material for the manufacture of goods by those undertaking the legislature made special provision in order to ensure that the acquisition of the aforesaid land did not affect adversely the production and supply of the raw material to the undertaking. The object was further to make full and efficient use of the land for agriculture and also if considered necessary to maintain the integrity of the area so acquired in one or more compact blocks. The legislature for this purpose initially made provision for the grant of the aforesaid lands to joint farming societies but as the proposal to set up these societies did not bear fruit the legislature made provision that the aforesaid lands be given for cultivation to the State Corporation. Section 28-1AA, in our opinion, was an integral part of a general scheme of the Act to bring about agrarian reform and, in our opinion, the impugned provisions of the Act, including Section 28-1AA, are protected by Article 3lA of theare not impressed by this argument. Acquisition of land held by industrial undertakings is not to be taken in isolation but as a part of the general scheme and object of the Act that there should be a ceiling on private holdings. While surplus lands of individuals are to be distributed, the legislature has made special provision in respect of land held by an industrial undertaking which had been cultivated for supplying raw material to the industrial undertaking. It has been provided in the case of such land that it should be cultivated by the Farming Corporation in an efficient manner so that the supply of raw material to the Industrial undertaking might not be affected. It is no doubt, true that distribution of acquired land among landless persons and poor peasants in a vast majority of cases is a part of the scheme of agrarian reform; the fact that in the case of some huge tract of land which is used for a particular purpose the statute in order to prevent its fragmentation and to subserve that purpose provides that it should be cultivated by a State owned farming corporation would not justify the inference that the statutory requirement in this respect is not a part of a general scheme of agrarian reform. Section 28-1AA does not operate in a vacuum. The Section has to be taken in its context and setting with the other provisions of the Act. If the provisions of the Act seek to remove economic imbalance by taking the surplus lands of holders in excess of a ceiling and if the provisions of the Act further contemplate that most of the lands after acquisition be distributed to poor peasants and landless persons, the fact that a few blocks of land because of their size and past use for cultivation of raw material for industrial undertakings are required under the provisions of the Act to be not fragmented, which would inevitably be the result if they were to be distributed like other lands acquired under the Act, but to be retained as compact blocks for being cultivated by, the farming corporation so that the industrial undertakings are not starved of the raw material, the last mentioned provision cannot be detached from the rest of the Act and struck down as being not a measure of agrarian reform. It is no doubt true that acquisition simpliciter of the land by the State to augment its resources and without specifying the purpose for which it is to be used after acquisition would not get the protection of Art. 31A. To decide the question of protection we must look at the general scheme of the statute containing provision for the acquisition, the object of the acquisition and the reasons which weigh for retaining the land with the State or its corporation and not distributing it among the landless persons and the poor peasants. The concept of agrarian reform, it needs to be emphasised, is not static and cannot always be put in a strait-jacket. With the change of times under the impact of fresh ideas and in the context of fresh situations, the concept of agrarian reform is bound to acquire new dimensions. A measure which has the effect of improving the rural economy or promoting rural welfare would be a part of agrarian reform Although in most of the cases, as already mentioned the agrarian reform would require distribution of surplus land among the poor peasants and landless persons living in the villages, situations might well arise where it would be in the interest of rural economy that any compact area of land instead of being fragmented by distribution should be preserved as one compact block and be cultivated by a State owned farming corporation. The fact that part of the acquired land would remain vested in the State Government or State-owned farming corporation would not militate against the object of agrarian reform if the continued vesting of the land in the Government or the Corporation is a part of a general of agrarian reform and there is no oblique deviation from the avowed purpose.We may note that argument has also been advanced by the learned Attorney General regarding the locus standi of the appellants to file the petition giving rise to the presentis, in our opinion, not necessary to express an opinion on the above submissions of the Attorney General in view of our finding thatthe impugned provisions are protected by Article 31A of the | 0 | 11,153 | 1,990 | ### 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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landless persons or poor peasants is an essential attribute of agrarian reform and that as the lands of the industrial undertakings are not to be distributed but have to be cultivated by the Farming Corporation owned by the State, the acquisition cannot be considered to be a measure of agrarian reform. We are not impressed by this argument. Acquisition of land held by industrial undertakings is not to be taken in isolation but as a part of the general scheme and object of the Act that there should be a ceiling on private holdings. While surplus lands of individuals are to be distributed, the legislature has made special provision in respect of land held by an industrial undertaking which had been cultivated for supplying raw material to the industrial undertaking. It has been provided in the case of such land that it should be cultivated by the Farming Corporation in an efficient manner so that the supply of raw material to the Industrial undertaking might not be affected. It is no doubt, true that distribution of acquired land among landless persons and poor peasants in a vast majority of cases is a part of the scheme of agrarian reform; the fact that in the case of some huge tract of land which is used for a particular purpose the statute in order to prevent its fragmentation and to subserve that purpose provides that it should be cultivated by a State owned farming corporation would not justify the inference that the statutory requirement in this respect is not a part of a general scheme of agrarian reform. Section 28-1AA does not operate in a vacuum. The Section has to be taken in its context and setting with the other provisions of the Act. If the provisions of the Act seek to remove economic imbalance by taking the surplus lands of holders in excess of a ceiling and if the provisions of the Act further contemplate that most of the lands after acquisition be distributed to poor peasants and landless persons, the fact that a few blocks of land because of their size and past use for cultivation of raw material for industrial undertakings are required under the provisions of the Act to be not fragmented, which would inevitably be the result if they were to be distributed like other lands acquired under the Act, but to be retained as compact blocks for being cultivated by, the farming corporation so that the industrial undertakings are not starved of the raw material, the last mentioned provision cannot be detached from the rest of the Act and struck down as being not a measure of agrarian reform. It is no doubt true that acquisition simpliciter of the land by the State to augment its resources and without specifying the purpose for which it is to be used after acquisition would not get the protection of Art. 31A. To decide the question of protection we must look at the general scheme of the statute containing provision for the acquisition, the object of the acquisition and the reasons which weigh for retaining the land with the State or its corporation and not distributing it among the landless persons and the poor peasants. The concept of agrarian reform, it needs to be emphasised, is not static and cannot always be put in a strait-jacket. With the change of times under the impact of fresh ideas and in the context of fresh situations, the concept of agrarian reform is bound to acquire new dimensions. A measure which has the effect of improving the rural economy or promoting rural welfare would be a part of agrarian reform Although in most of the cases, as already mentioned the agrarian reform would require distribution of surplus land among the poor peasants and landless persons living in the villages, situations might well arise where it would be in the interest of rural economy that any compact area of land instead of being fragmented by distribution should be preserved as one compact block and be cultivated by a State owned farming corporation. The fact that part of the acquired land would remain vested in the State Government or State-owned farming corporation would not militate against the object of agrarian reform if the continued vesting of the land in the Government or the Corporation is a part of a general of agrarian reform and there is no oblique deviation from the avowed purpose.In the case of Ranjit Singh v. State of Punjab (supra), part of the acquired land was to vest in the State Government for schools, playgrounds, dispensaries, hospitals, waterworks, tubewells and as the above vesting was a part of a general scheme of rural welfare, the statute providing for that vesting was upheld and afforded the protection of article 31A.Ancillary provisions to give full effect to a scheme of agrarian reform, it may be stressed, would also have the protection of Art. 31A.33. We may note that argument has also been advanced by the learned Attorney General regarding the locus standi of the appellants to file the petition giving rise to the present appeal. It is urged that the appellants have no locus standi to file the petition in respect of land measuring 10315 acres as unconditional possession thereof was delivered in May 1968. In the alternative, it is submitted that clause (5) of Sec. 21 of the impugned Act which was introduced by amending Act 27 of 1970 is severable from the other provisions of the amending Act and is in any case constitutionally valid. As land measuring 10315 acres in accordance with the above clause had already vested before the filing of the petition in the State Government the appellants had no locus standi to file petition in respect of that area of land. It is, in our opinion, not necessary to express an opinion on the above submissions of the Attorney General in view of our finding that the impugned provisions are protected by Article 31A of the Constitution.
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0
### Explanation:
purpose of the Act was to prevent concentration of agriculture land in the hands of a few. A ceiling was consequently imposed regarding the extent of land which might be held by an individual. Surplus land was distributed in accordance with Section 27 of the Act. It cannot be disputed that the provisions of the impugned Act in so far as the above objects were concerned effectuated the object of agrarian reform. As regards lands which were held by the industrial undertakings for the purpose producing and providing raw material for the manufacture of goods by those undertaking the legislature made special provision in order to ensure that the acquisition of the aforesaid land did not affect adversely the production and supply of the raw material to the undertaking. The object was further to make full and efficient use of the land for agriculture and also if considered necessary to maintain the integrity of the area so acquired in one or more compact blocks. The legislature for this purpose initially made provision for the grant of the aforesaid lands to joint farming societies but as the proposal to set up these societies did not bear fruit the legislature made provision that the aforesaid lands be given for cultivation to the State Corporation. Section 28-1AA, in our opinion, was an integral part of a general scheme of the Act to bring about agrarian reform and, in our opinion, the impugned provisions of the Act, including Section 28-1AA, are protected by Article 3lA of theare not impressed by this argument. Acquisition of land held by industrial undertakings is not to be taken in isolation but as a part of the general scheme and object of the Act that there should be a ceiling on private holdings. While surplus lands of individuals are to be distributed, the legislature has made special provision in respect of land held by an industrial undertaking which had been cultivated for supplying raw material to the industrial undertaking. It has been provided in the case of such land that it should be cultivated by the Farming Corporation in an efficient manner so that the supply of raw material to the Industrial undertaking might not be affected. It is no doubt, true that distribution of acquired land among landless persons and poor peasants in a vast majority of cases is a part of the scheme of agrarian reform; the fact that in the case of some huge tract of land which is used for a particular purpose the statute in order to prevent its fragmentation and to subserve that purpose provides that it should be cultivated by a State owned farming corporation would not justify the inference that the statutory requirement in this respect is not a part of a general scheme of agrarian reform. Section 28-1AA does not operate in a vacuum. The Section has to be taken in its context and setting with the other provisions of the Act. If the provisions of the Act seek to remove economic imbalance by taking the surplus lands of holders in excess of a ceiling and if the provisions of the Act further contemplate that most of the lands after acquisition be distributed to poor peasants and landless persons, the fact that a few blocks of land because of their size and past use for cultivation of raw material for industrial undertakings are required under the provisions of the Act to be not fragmented, which would inevitably be the result if they were to be distributed like other lands acquired under the Act, but to be retained as compact blocks for being cultivated by, the farming corporation so that the industrial undertakings are not starved of the raw material, the last mentioned provision cannot be detached from the rest of the Act and struck down as being not a measure of agrarian reform. It is no doubt true that acquisition simpliciter of the land by the State to augment its resources and without specifying the purpose for which it is to be used after acquisition would not get the protection of Art. 31A. To decide the question of protection we must look at the general scheme of the statute containing provision for the acquisition, the object of the acquisition and the reasons which weigh for retaining the land with the State or its corporation and not distributing it among the landless persons and the poor peasants. The concept of agrarian reform, it needs to be emphasised, is not static and cannot always be put in a strait-jacket. With the change of times under the impact of fresh ideas and in the context of fresh situations, the concept of agrarian reform is bound to acquire new dimensions. A measure which has the effect of improving the rural economy or promoting rural welfare would be a part of agrarian reform Although in most of the cases, as already mentioned the agrarian reform would require distribution of surplus land among the poor peasants and landless persons living in the villages, situations might well arise where it would be in the interest of rural economy that any compact area of land instead of being fragmented by distribution should be preserved as one compact block and be cultivated by a State owned farming corporation. The fact that part of the acquired land would remain vested in the State Government or State-owned farming corporation would not militate against the object of agrarian reform if the continued vesting of the land in the Government or the Corporation is a part of a general of agrarian reform and there is no oblique deviation from the avowed purpose.We may note that argument has also been advanced by the learned Attorney General regarding the locus standi of the appellants to file the petition giving rise to the presentis, in our opinion, not necessary to express an opinion on the above submissions of the Attorney General in view of our finding thatthe impugned provisions are protected by Article 31A of the
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Binny Ltd Vs. Their Workmen And Anr | of all the available material relating to the dispute. In the absence of such material the point must be decided against the appellant. In our view the further submission that the order of reference must on the face of it show what impelled the Government to depart from its earlier decision and that in the absence thereof the Court must hold that there were no reasons for such a change of opinion is without any force. 13. The next submission was that the dispute with regard to the dismissal of Kuppuswamy ceased to be an industrial dispute after the Union ceased to sponsor his case. As already mentioned, during the pendency of the proceedings, before the Labour Court, there was a settlement of the disputes between the Union and the Management with regard to all the employees other than Kuppuswamy. The memorandum of settlement under S. 12 (3) of the Industrial Disputes Act which was put in on the 24June 1967 shows that the Union had proposed that in consideration of their withdrawal of the cases of Madaiah, Ekambaram and Devaiah, Ramanatha and Kuppuswamy may be taken back into service but the Management did not accept the proposal but offered to take back Ramanatha only, which was accepted by the Union. The Union further undertook not to represent Kuppouswamys case or prosecute it before the Labour Court in view of this overall settlement with the Management. It is not necessary for us to consider whether S. 2A of the Act which was introduced in the statute in 1965 has any application to the facts before us. We do not however see any reason to hold that the dispute which had already been referred by Government should cease to be one in respect of a portion of it merely because the Union did not choose to represent the case of a particular dismissed employee. If there was an industrial dispute at the time of reference it would cease to be one merely because the claim of some of the dismissed employees was settled by mutual agreement. 14. The last point urged before us was that on the facts of the case the Labour Court should not have directed reinstatement but should have allowed compensation to Kuppuswamy in view of the following factors: (1) Kuppuswamy had been dismissed because of gross indiscipline and it was not proper to order reinstatement of a person who might indulge in similar acts in the future. (2) Reinstatement should not have been ordered four years after the dismissal as the Management had already made other arrangements for the work which was formerly being done by Kuppuswamy executed through some other workman. On the first of the above points our attention was drawn to the decision in Shalimar Works Limited v. Their Workmen, (1960) 1 SCR 150 at p. 159 = (AIR 1959 SC 1217 ). There the facts were that the company had discharged a large number of workmen in April 1948 and the first order of reference was made in October 1952. The case of no less than 250 workmen was involved in the dispute and this Court observed that :"....if for any reason there had been a wholesale discharge of workmen and closure of the industry followed by its reopening and fresh recruitment of labour, it is necessary that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable time....... In the circumstances, we are of opinion that the tribunal would be justified in refusing the relief of reinstatement to a void dislocation of the industry...... On this view the Court felt that the Appellate Tribunal should not have ordered the reinstatement of even the 15 workmen as their case was exactly the same as that of a large number of others. In our view what was said in the Shalimar Works case cannot be repeated in the case before us. The appellant pursues an industry with a large number of workmen and we cannot imagine any serious dislocation of work by the order of reinstatement of one workman. Normally it will be months before an order of reference is made by Government and one or two years elapse in almost all cases before the adjudication by an Industrial Tribunal is complete. If mere lapse of time be enough to lead the Industrial Tribunal to hold that there should be no reinstatement of service the power of reinstatement will become obsolete. In any case the Management must try to show that reinstatement will cause dislocation of work and the Tribunal must taken that into consideration. In this case we find no such compelling circumstances. 15. On the question as to whether compensation should have been awarded in lieu of reinstatement, we were referred to the case of Hindustan Steels. v. A. K. Roy, (1970) 1 Lab LJ 228 = (AIR 1970 SC 1401 ) where it was said that it was in the discretion of the tribunal to make an order of reinstatement or to award compensation in lieu thereof and it is only when the tribunal exercises its jurisdiction in disregard of the circumstances or the relevant principles laid down in regard thereto that this Court would interfere with its discretion. It has become almost a settled principle that reinstatement should not be awarded where the management justifiably alleges that they have ceased to have confidence in the dismissed employee. In other cases the Tribunal must consider carefully the circumstances of the case to come to a finding that justice and fairplay require that reinstatement should be awarded. In this case, there is no allegation that the Management had lost confidence in Kupuswamy. It is extremely doubtful whether the Manager would have ordered dismissal if Veeraraghavan had not drawn his attention to the past lapses of the respondent about which he was not allowed to have a say. We do not therefore feel that we must interfere with the award of reinstatement of the respondent. | 0[ds]10. In our view the decision in India Marine Service v. Their Workmen, (1963) 1 Lab LJ 122 = (AIR 1963 SC 528 ) does not help the appellant. There the order of enquiry officer extracted at page 124 righthand column clearly shows that the order of dismissal was based on one of the charges and it was only after recording this decision that the enquiry officer went on to note "in taking the action against you we have also taken into consideration your past record which is very much against you.11. The case of Tat a Oil Mills Co. v. Its Workmen, (1963) 2 Lab LJ 78 (SC), is equally unhelpful to the appellant. There this Court found itself unable to sustain the finding of the Industrial Tribunal that the domestic enquiry was unfair because the concerned workman had not been given sufficient time to submit his explanation. Examining the facts of the case this Court concluded that"the position appears to be that on the two points on which Gupta could have cross-examined Mr. Banjeree if the report had been given to him have been tested in cross-examination, and so we feel no hesitation in holding that the failure to supply Mr. Banerjees report to Gupta has not caused any prejudice to Gupta in the present case.12. The submission that the order of reference is invalid as the Government had no grounds or material to form the opinion about the existence of a dispute in order to enable it to make an order under S. 10 (1) is one which does not merit any consideration. In the absence of the Government from the array of the parties it is not possible to come to any finding as to whether there was any such material or not. But the mere fact that on two previous occasions Government had taken the view that no reference was called for does not entitle us to conclude that there could be no cause for reference in 1966.The enquiry was held on 10th November 1963 and the order of termination of service was made the very same day. The letter of the under Secretary to Government, Labour Department dated August 17, 1964 shows that out of the five workmen in question Government considered the cases of dismissal of three as quite old as having taken place at different times in 1961, 1962 and 1963 as such did not deserve consideration. With regard to the other two, namely, Ramanatha and Kuppuswamy Government was of the view that they had been employed in they year 1963 itself and had put in very short periods of service and as they had been dismissed after proper enquiry no reference was called for. The second letter is dated August 21, 1965 where the Under Secretary merely stated that in view of the decision already taken, the dispute in question did not merit reference for adjudication. From the above it does not follow that Government could not thereafter either change its mind or make an order of reference on fresh material before it. Under S. 10 (1) of the Industrial Disputes Act a reference may be made at any time whenever the appropriate Government is of opinion that any industrial dispute exists or is apprehended. At any rate the point could only be canvassed either in a proceeding to which the Government was a party or in one where the Court was in possession of all the available material relating to the dispute. In the absence of such material the point must be decided against the appellant. In our view the further submission that the order of reference must on the face of it show what impelled the Government to depart from its earlier decision and that in the absence thereof the Court must hold that there were no reasons for such a change of opinion is without any force13. The next submission was that the dispute with regard to the dismissal of Kuppuswamy ceased to be an industrial dispute after the Union ceased to sponsor his case. As already mentioned, during the pendency of the proceedings, before the Labour Court, there was a settlement of the disputes between the Union and the Management with regard to all the employees other than Kuppuswamy. The memorandum of settlement under S. 12 (3) of the Industrial Disputes Act which was put in on the 24June 1967 shows that the Union had proposed that in consideration of their withdrawal of the cases of Madaiah, Ekambaram and Devaiah, Ramanatha and Kuppuswamy may be taken back into service but the Management did not accept the proposal but offered to take back Ramanatha only, which was accepted by the Union. The Union further undertook not to represent Kuppouswamys case or prosecute it before the Labour Court in view of this overall settlement with the Management. It is not necessary for us to consider whether S. 2A of the Act which was introduced in the statute in 1965 has any application to the facts before us. We do not however see any reason to hold that the dispute which had already been referred by Government should cease to be one in respect of a portion of it merely because the Union did not choose to represent the case of a particular dismissed employee. If there was an industrial dispute at the time of reference it would cease to be one merely because the claim of some of the dismissed employees was settled by mutual agreement14. The last point urged before us was that on the facts of the case the Labour Court should not have directed reinstatement but should have allowed compensation to Kuppuswamy in view of the following factors: (1) Kuppuswamy had been dismissed because of gross indiscipline and it was not proper to order reinstatement of a person who might indulge in similar acts in the future. (2) Reinstatement should not have been ordered four years after the dismissal as the Management had already made other arrangements for the work which was formerly being done by Kuppuswamy executed through some other workman. On the first of the above points our attention was drawn to the decision in Shalimar Works Limited v. Their Workmen, (1960) 1 SCR 150 at p. 159 = (AIR 1959 SC 1217 ). There the facts were that the company had discharged a large number of workmen in April 1948 and the first order of reference was made in October 1952. The case of no less than 250 workmen was involved in the dispute and this Court observed that :"....if for any reason there had been a wholesale discharge of workmen and closure of the industry followed by its reopening and fresh recruitment of labour, it is necessary that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable timeIn the circumstances, we are of opinion that the tribunal would be justified in refusing the relief of reinstatement to a void dislocation of the industry......On this view the Court felt that the Appellate Tribunal should not have ordered the reinstatement of even the 15 workmen as their case was exactly the same as that of a large number of others. In our view what was said in the Shalimar Works case cannot be repeated in the case before us. The appellant pursues an industry with a large number of workmen and we cannot imagine any serious dislocation of work by the order of reinstatement of one workman. Normally it will be months before an order of reference is made by Government and one or two years elapse in almost all cases before the adjudication by an Industrial Tribunal is complete. If mere lapse of time be enough to lead the Industrial Tribunal to hold that there should be no reinstatement of service the power of reinstatement will become obsolete. In any case the Management must try to show that reinstatement will cause dislocation of work and the Tribunal must taken that into consideration. In this case we find no such compelling circumstances15. On the question as to whether compensation should have been awarded in lieu of reinstatement, we were referred to the case of Hindustan Steels. v. A. K. Roy, (1970) 1 Lab LJ 228 = (AIR 1970 SC 1401 ) where it was said that it was in the discretion of the tribunal to make an order of reinstatement or to award compensation in lieu thereof and it is only when the tribunal exercises its jurisdiction in disregard of the circumstances or the relevant principles laid down in regard thereto that this Court would interfere with its discretion. It has become almost a settled principle that reinstatement should not be awarded where the management justifiably alleges that they have ceased to have confidence in the dismissed employee. In other cases the Tribunal must consider carefully the circumstances of the case to come to a finding that justice and fairplay require that reinstatement should be awarded. In this case, there is no allegation that the Management had lost confidence in Kupuswamy. It is extremely doubtful whether the Manager would have ordered dismissal if Veeraraghavan had not drawn his attention to the past lapses of the respondent about which he was not allowed to have a say. We do not therefore feel that we must interfere with the award of reinstatement of the respondent. | 0 | 4,712 | 1,671 | ### Instruction:
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of all the available material relating to the dispute. In the absence of such material the point must be decided against the appellant. In our view the further submission that the order of reference must on the face of it show what impelled the Government to depart from its earlier decision and that in the absence thereof the Court must hold that there were no reasons for such a change of opinion is without any force. 13. The next submission was that the dispute with regard to the dismissal of Kuppuswamy ceased to be an industrial dispute after the Union ceased to sponsor his case. As already mentioned, during the pendency of the proceedings, before the Labour Court, there was a settlement of the disputes between the Union and the Management with regard to all the employees other than Kuppuswamy. The memorandum of settlement under S. 12 (3) of the Industrial Disputes Act which was put in on the 24June 1967 shows that the Union had proposed that in consideration of their withdrawal of the cases of Madaiah, Ekambaram and Devaiah, Ramanatha and Kuppuswamy may be taken back into service but the Management did not accept the proposal but offered to take back Ramanatha only, which was accepted by the Union. The Union further undertook not to represent Kuppouswamys case or prosecute it before the Labour Court in view of this overall settlement with the Management. It is not necessary for us to consider whether S. 2A of the Act which was introduced in the statute in 1965 has any application to the facts before us. We do not however see any reason to hold that the dispute which had already been referred by Government should cease to be one in respect of a portion of it merely because the Union did not choose to represent the case of a particular dismissed employee. If there was an industrial dispute at the time of reference it would cease to be one merely because the claim of some of the dismissed employees was settled by mutual agreement. 14. The last point urged before us was that on the facts of the case the Labour Court should not have directed reinstatement but should have allowed compensation to Kuppuswamy in view of the following factors: (1) Kuppuswamy had been dismissed because of gross indiscipline and it was not proper to order reinstatement of a person who might indulge in similar acts in the future. (2) Reinstatement should not have been ordered four years after the dismissal as the Management had already made other arrangements for the work which was formerly being done by Kuppuswamy executed through some other workman. On the first of the above points our attention was drawn to the decision in Shalimar Works Limited v. Their Workmen, (1960) 1 SCR 150 at p. 159 = (AIR 1959 SC 1217 ). There the facts were that the company had discharged a large number of workmen in April 1948 and the first order of reference was made in October 1952. The case of no less than 250 workmen was involved in the dispute and this Court observed that :"....if for any reason there had been a wholesale discharge of workmen and closure of the industry followed by its reopening and fresh recruitment of labour, it is necessary that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable time....... In the circumstances, we are of opinion that the tribunal would be justified in refusing the relief of reinstatement to a void dislocation of the industry...... On this view the Court felt that the Appellate Tribunal should not have ordered the reinstatement of even the 15 workmen as their case was exactly the same as that of a large number of others. In our view what was said in the Shalimar Works case cannot be repeated in the case before us. The appellant pursues an industry with a large number of workmen and we cannot imagine any serious dislocation of work by the order of reinstatement of one workman. Normally it will be months before an order of reference is made by Government and one or two years elapse in almost all cases before the adjudication by an Industrial Tribunal is complete. If mere lapse of time be enough to lead the Industrial Tribunal to hold that there should be no reinstatement of service the power of reinstatement will become obsolete. In any case the Management must try to show that reinstatement will cause dislocation of work and the Tribunal must taken that into consideration. In this case we find no such compelling circumstances. 15. On the question as to whether compensation should have been awarded in lieu of reinstatement, we were referred to the case of Hindustan Steels. v. A. K. Roy, (1970) 1 Lab LJ 228 = (AIR 1970 SC 1401 ) where it was said that it was in the discretion of the tribunal to make an order of reinstatement or to award compensation in lieu thereof and it is only when the tribunal exercises its jurisdiction in disregard of the circumstances or the relevant principles laid down in regard thereto that this Court would interfere with its discretion. It has become almost a settled principle that reinstatement should not be awarded where the management justifiably alleges that they have ceased to have confidence in the dismissed employee. In other cases the Tribunal must consider carefully the circumstances of the case to come to a finding that justice and fairplay require that reinstatement should be awarded. In this case, there is no allegation that the Management had lost confidence in Kupuswamy. It is extremely doubtful whether the Manager would have ordered dismissal if Veeraraghavan had not drawn his attention to the past lapses of the respondent about which he was not allowed to have a say. We do not therefore feel that we must interfere with the award of reinstatement of the respondent.
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all the available material relating to the dispute. In the absence of such material the point must be decided against the appellant. In our view the further submission that the order of reference must on the face of it show what impelled the Government to depart from its earlier decision and that in the absence thereof the Court must hold that there were no reasons for such a change of opinion is without any force13. The next submission was that the dispute with regard to the dismissal of Kuppuswamy ceased to be an industrial dispute after the Union ceased to sponsor his case. As already mentioned, during the pendency of the proceedings, before the Labour Court, there was a settlement of the disputes between the Union and the Management with regard to all the employees other than Kuppuswamy. The memorandum of settlement under S. 12 (3) of the Industrial Disputes Act which was put in on the 24June 1967 shows that the Union had proposed that in consideration of their withdrawal of the cases of Madaiah, Ekambaram and Devaiah, Ramanatha and Kuppuswamy may be taken back into service but the Management did not accept the proposal but offered to take back Ramanatha only, which was accepted by the Union. The Union further undertook not to represent Kuppouswamys case or prosecute it before the Labour Court in view of this overall settlement with the Management. It is not necessary for us to consider whether S. 2A of the Act which was introduced in the statute in 1965 has any application to the facts before us. We do not however see any reason to hold that the dispute which had already been referred by Government should cease to be one in respect of a portion of it merely because the Union did not choose to represent the case of a particular dismissed employee. If there was an industrial dispute at the time of reference it would cease to be one merely because the claim of some of the dismissed employees was settled by mutual agreement14. The last point urged before us was that on the facts of the case the Labour Court should not have directed reinstatement but should have allowed compensation to Kuppuswamy in view of the following factors: (1) Kuppuswamy had been dismissed because of gross indiscipline and it was not proper to order reinstatement of a person who might indulge in similar acts in the future. (2) Reinstatement should not have been ordered four years after the dismissal as the Management had already made other arrangements for the work which was formerly being done by Kuppuswamy executed through some other workman. On the first of the above points our attention was drawn to the decision in Shalimar Works Limited v. Their Workmen, (1960) 1 SCR 150 at p. 159 = (AIR 1959 SC 1217 ). There the facts were that the company had discharged a large number of workmen in April 1948 and the first order of reference was made in October 1952. The case of no less than 250 workmen was involved in the dispute and this Court observed that :"....if for any reason there had been a wholesale discharge of workmen and closure of the industry followed by its reopening and fresh recruitment of labour, it is necessary that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable timeIn the circumstances, we are of opinion that the tribunal would be justified in refusing the relief of reinstatement to a void dislocation of the industry......On this view the Court felt that the Appellate Tribunal should not have ordered the reinstatement of even the 15 workmen as their case was exactly the same as that of a large number of others. In our view what was said in the Shalimar Works case cannot be repeated in the case before us. The appellant pursues an industry with a large number of workmen and we cannot imagine any serious dislocation of work by the order of reinstatement of one workman. Normally it will be months before an order of reference is made by Government and one or two years elapse in almost all cases before the adjudication by an Industrial Tribunal is complete. If mere lapse of time be enough to lead the Industrial Tribunal to hold that there should be no reinstatement of service the power of reinstatement will become obsolete. In any case the Management must try to show that reinstatement will cause dislocation of work and the Tribunal must taken that into consideration. In this case we find no such compelling circumstances15. On the question as to whether compensation should have been awarded in lieu of reinstatement, we were referred to the case of Hindustan Steels. v. A. K. Roy, (1970) 1 Lab LJ 228 = (AIR 1970 SC 1401 ) where it was said that it was in the discretion of the tribunal to make an order of reinstatement or to award compensation in lieu thereof and it is only when the tribunal exercises its jurisdiction in disregard of the circumstances or the relevant principles laid down in regard thereto that this Court would interfere with its discretion. It has become almost a settled principle that reinstatement should not be awarded where the management justifiably alleges that they have ceased to have confidence in the dismissed employee. In other cases the Tribunal must consider carefully the circumstances of the case to come to a finding that justice and fairplay require that reinstatement should be awarded. In this case, there is no allegation that the Management had lost confidence in Kupuswamy. It is extremely doubtful whether the Manager would have ordered dismissal if Veeraraghavan had not drawn his attention to the past lapses of the respondent about which he was not allowed to have a say. We do not therefore feel that we must interfere with the award of reinstatement of the respondent.
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Kanpur Sugar Works Ltd Vs. State Of Bihar & Ors | and 7. Under sub-s. (1) of S. 5 it is provided:"With effect from the date of vesting, all homesteads comprised in an estate or tenure and being in the possession of an intermediary on the date of such vesting shall, subject to the provisions of sections 7A and 7B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession of the land comprised in such homesteads and to hold it as a tenant under the State free of rent: Provided that such homesteads as are used by the intermediary for purposes of letting out on rent shall be subject to the payment of such fair and equitable ground-rent as may be determined by the Collector in the prescribed manner." Section 6 deals with the right of the previous holder of land used for agricultural or horticultural purposes which were in khas possession of an intermediary on the date of vesting. In this case, we are not concerned with any dispute relating to such land. By S. 7 (1), insofar as it is relevant, it is provided:"Such buildings or structures together with the lands on which they stand, other than any buildings used primarily as offices or cutcheries referred to in clause (a) of section 4, as were in the possession of an intermediary at the commencement of this Act and used as golas, factories or mills, for the purpose of trade, manufacture or commerce or x x x and constructed or established and used for the aforesaid purposes before the first day of January 1946, shall x x be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession of such buildings or structures together with the lands on which they stand as a tenant under the State subject to the payment of such fair and equitable ground-rent as may be determined by the Collector x x x" It is clear from a bare perusal of sub-section (1) of S. 7 that the buildings which are primarily used as offices or cutcheries referred to in cl. (a) of S. 4 as were in the possession of an intermediary at the commencement of the Act are excluded from the terms of S. 7 (1). Again, Sub-s. (1) only applies to such buildings or structures together with the lands on which they stand which are used as golas, factories or mills for the purpose of trade, manufacture or commerce or used for storing grains or keeping cattle or implements for the purpose of agriculture. The expression employed by the Legislature is "used as golas, factories or mills" and not "used for golas, factories or mills". The expression "lands on which they stand" may include the land which is necessary for the efficient user of the building for the purpose for which it is intended to be used.We are unable however to hold that because a factory has, for the benefit of the workmen and managerial staff working in the factory, constructed buildings used as bungalows, quarters for employees, clubs, kitchens, garage, clubs, dispensary, rest-house, outhouses etc., but which are not directly used as factory or mill buildings, the buildings would be deemed to fall within S. 7 (1) as buildings in the possession of an intermediary and used as golas, factories or mills. In our judgment, these lands are homestead and are claimable by an intermediary under S. 5 (1): if they are used for the purpose of letting out they would be liable to pay fair and equitable ground-rent under the proviso to sub-s. (1) of section 5. 6. The High Court was, we think, in error in relying upon the definition of "factory" used in the Factories Act, 1948. The scheme and subject of the Factories Act are different. The Act is intended to regulate labour in factories, to protect workmen from being subjected to unduly long working hours, for making provisions for healthy and sanitary conditions of service, and for protecting the workmen from industrial hazards.The definition of "factory" in the Factories Act cannot be a guide, much less a useful guide, in determining the meaning of the expression "factory" as used in the Bihar Land Reforms Act, 1950. The liability to pay rent under the Bihar Land Reforms Act, 1950, on the footing that the land remained in the possession of the intermediary on which buildings or structures used as golas, factories or mills, for the purpose of trade, manufacture or commerce must be determined on the terms used in the Bihar Land Reforms Act, and not by incorporating words used in another statute of which the scheme and object are different. 7. The revenue authorities erred in holding that the entire area of 83 bighas odd was liable to be assessed to rent under S. 7 (1) of the Bihar Land Reforms Act, 1950. Undoubtedly an area of 12 bighas 9 kathas 7 dhurs is liable to be assessed to rent under Section 7(1) of the Act. If there are other lands which strictly fall within the expression" buildings or structures together with the lands" used as golas, factories or mills for the purpose of trade, manufacture or commerce, it will be open to the Collector to assess those lands to rent under S. 7(1), but the lands not covered by buildings and structures used for golas, factories or mills, will be governed by S. 5(1) of the Act. 8. We are, on the materials on the record, unable to specify the buildings and lands falling within S. 7 of the Act for the purpose of determination of assessment of rent. The evidence on the record before us is not clear as to what structures or buildings stand on the lands in the outer enclosure and the purpose for which they are used. We are also not clear as to the precise meaning of the expression "golas" used in S. 7 - the expression not being defined in the Act. | 1[ds]It is clear from a bare perusal of sub-section (1) of S. 7 that the buildings which are primarily used as offices or cutcheries referred to in cl. (a) of S. 4 as were in the possession of an intermediary at the commencement of the Act are excluded from the terms of S. 7 (1). Again, Sub-s. (1) only applies to such buildings or structures together with the lands on which they stand which are used as golas, factories or mills for the purpose of trade, manufacture or commerce or used for storing grains or keeping cattle or implements for the purpose of agriculture. The expression employed by the Legislature is "used as golas, factories or mills" and not "used for golas, factories or mills". The expression "lands on which they stand" may include the land which is necessary for the efficient user of the building for the purpose for which it is intended to be used.We are unable however to hold that because a factory has, for the benefit of the workmen and managerial staff working in the factory, constructed buildings used as bungalows, quarters for employees, clubs, kitchens, garage, clubs, dispensary, rest-house, outhouses etc., but which are not directly used as factory or mill buildings, the buildings would be deemed to fall within S. 7 (1) as buildings in the possession of an intermediary and used as golas, factories or mills. In our judgment, these lands are homestead and are claimable by an intermediary under S. 5 (1): if they are used for the purpose of letting out they would be liable to pay fair and equitable ground-rent under the proviso to sub-s. (1) of section 56. The High Court was, we think, in error in relying upon the definition of "factory" used inthe Factories Act, 1948. The scheme and subject of the Factories Act are different. The Act is intended to regulate labour in factories, to protect workmen from being subjected to unduly long working hours, for making provisions for healthy and sanitary conditions of service, and for protecting the workmen from industrial hazards.The definition of "factory" in the Factories Act cannot be a guide, much less a useful guide, in determining the meaning of the expression "factory" as used in the Bihar Land Reforms Act, 1950. The liability to pay rent under the Bihar Land Reforms Act, 1950, on the footing that the land remained in the possession of the intermediary on which buildings or structures used as golas, factories or mills, for the purpose of trade, manufacture or commerce must be determined on the terms used in the Bihar Land Reforms Act, and not by incorporating words used in another statute of which the scheme and object are different7. The revenue authorities erred in holding that the entire area of 83 bighas odd was liable to be assessed to rent under S. 7 (1) of the Bihar Land Reforms Act, 1950. Undoubtedly an area of 12 bighas 9 kathas 7 dhurs is liable to be assessed to rent under Section 7(1) of the Act. If there are other lands which strictly fall within the expression" buildings or structures together with the lands" used as golas, factories or mills for the purpose of trade, manufacture or commerce, it will be open to the Collector to assess those lands to rent under S. 7(1), but the lands not covered by buildings and structures used for golas, factories or mills, will be governed by S. 5(1) of the Act8. We are, on the materials on the record, unable to specify the buildings and lands falling within S. 7 of the Act for the purpose of determination of assessment of rent. The evidence on the record before us is not clear as to what structures or buildings stand on the lands in the outer enclosure and the purpose for which they are used. We are also not clear as to the precise meaning of the expression "golas" used in S. 7 - the expression not being defined in the Act4. In our view, the order passed by the High Court cannot be sustained. It appears that there are two enclosures which comprise the total area of 83 bighas odd in respect of which the dispute arises. One is the inner enclosure in which are situate the buildings of the factory in which sugar is manufactured and the process of distillation of liquor is carried on. The outer enclosure consists of an area of 71 bighas 2 kathas and 12 dhurs. In the statement of land in the Khas possession of the company all these lands are described as used for residential quarters, cutcheri, dispensary,, bungalows, outhouses, kitchen quarters, latrines, garage, club, control office, watertank, "bakery house", cane office quarters, godowns,, weighbridge house,l etc." The dispute raised by the Company is that the land on which these buildings stand is homestead, and is governed by S. 5 of the Act. | 1 | 2,299 | 956 | ### 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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and 7. Under sub-s. (1) of S. 5 it is provided:"With effect from the date of vesting, all homesteads comprised in an estate or tenure and being in the possession of an intermediary on the date of such vesting shall, subject to the provisions of sections 7A and 7B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession of the land comprised in such homesteads and to hold it as a tenant under the State free of rent: Provided that such homesteads as are used by the intermediary for purposes of letting out on rent shall be subject to the payment of such fair and equitable ground-rent as may be determined by the Collector in the prescribed manner." Section 6 deals with the right of the previous holder of land used for agricultural or horticultural purposes which were in khas possession of an intermediary on the date of vesting. In this case, we are not concerned with any dispute relating to such land. By S. 7 (1), insofar as it is relevant, it is provided:"Such buildings or structures together with the lands on which they stand, other than any buildings used primarily as offices or cutcheries referred to in clause (a) of section 4, as were in the possession of an intermediary at the commencement of this Act and used as golas, factories or mills, for the purpose of trade, manufacture or commerce or x x x and constructed or established and used for the aforesaid purposes before the first day of January 1946, shall x x be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession of such buildings or structures together with the lands on which they stand as a tenant under the State subject to the payment of such fair and equitable ground-rent as may be determined by the Collector x x x" It is clear from a bare perusal of sub-section (1) of S. 7 that the buildings which are primarily used as offices or cutcheries referred to in cl. (a) of S. 4 as were in the possession of an intermediary at the commencement of the Act are excluded from the terms of S. 7 (1). Again, Sub-s. (1) only applies to such buildings or structures together with the lands on which they stand which are used as golas, factories or mills for the purpose of trade, manufacture or commerce or used for storing grains or keeping cattle or implements for the purpose of agriculture. The expression employed by the Legislature is "used as golas, factories or mills" and not "used for golas, factories or mills". The expression "lands on which they stand" may include the land which is necessary for the efficient user of the building for the purpose for which it is intended to be used.We are unable however to hold that because a factory has, for the benefit of the workmen and managerial staff working in the factory, constructed buildings used as bungalows, quarters for employees, clubs, kitchens, garage, clubs, dispensary, rest-house, outhouses etc., but which are not directly used as factory or mill buildings, the buildings would be deemed to fall within S. 7 (1) as buildings in the possession of an intermediary and used as golas, factories or mills. In our judgment, these lands are homestead and are claimable by an intermediary under S. 5 (1): if they are used for the purpose of letting out they would be liable to pay fair and equitable ground-rent under the proviso to sub-s. (1) of section 5. 6. The High Court was, we think, in error in relying upon the definition of "factory" used in the Factories Act, 1948. The scheme and subject of the Factories Act are different. The Act is intended to regulate labour in factories, to protect workmen from being subjected to unduly long working hours, for making provisions for healthy and sanitary conditions of service, and for protecting the workmen from industrial hazards.The definition of "factory" in the Factories Act cannot be a guide, much less a useful guide, in determining the meaning of the expression "factory" as used in the Bihar Land Reforms Act, 1950. The liability to pay rent under the Bihar Land Reforms Act, 1950, on the footing that the land remained in the possession of the intermediary on which buildings or structures used as golas, factories or mills, for the purpose of trade, manufacture or commerce must be determined on the terms used in the Bihar Land Reforms Act, and not by incorporating words used in another statute of which the scheme and object are different. 7. The revenue authorities erred in holding that the entire area of 83 bighas odd was liable to be assessed to rent under S. 7 (1) of the Bihar Land Reforms Act, 1950. Undoubtedly an area of 12 bighas 9 kathas 7 dhurs is liable to be assessed to rent under Section 7(1) of the Act. If there are other lands which strictly fall within the expression" buildings or structures together with the lands" used as golas, factories or mills for the purpose of trade, manufacture or commerce, it will be open to the Collector to assess those lands to rent under S. 7(1), but the lands not covered by buildings and structures used for golas, factories or mills, will be governed by S. 5(1) of the Act. 8. We are, on the materials on the record, unable to specify the buildings and lands falling within S. 7 of the Act for the purpose of determination of assessment of rent. The evidence on the record before us is not clear as to what structures or buildings stand on the lands in the outer enclosure and the purpose for which they are used. We are also not clear as to the precise meaning of the expression "golas" used in S. 7 - the expression not being defined in the Act.
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### Explanation:
It is clear from a bare perusal of sub-section (1) of S. 7 that the buildings which are primarily used as offices or cutcheries referred to in cl. (a) of S. 4 as were in the possession of an intermediary at the commencement of the Act are excluded from the terms of S. 7 (1). Again, Sub-s. (1) only applies to such buildings or structures together with the lands on which they stand which are used as golas, factories or mills for the purpose of trade, manufacture or commerce or used for storing grains or keeping cattle or implements for the purpose of agriculture. The expression employed by the Legislature is "used as golas, factories or mills" and not "used for golas, factories or mills". The expression "lands on which they stand" may include the land which is necessary for the efficient user of the building for the purpose for which it is intended to be used.We are unable however to hold that because a factory has, for the benefit of the workmen and managerial staff working in the factory, constructed buildings used as bungalows, quarters for employees, clubs, kitchens, garage, clubs, dispensary, rest-house, outhouses etc., but which are not directly used as factory or mill buildings, the buildings would be deemed to fall within S. 7 (1) as buildings in the possession of an intermediary and used as golas, factories or mills. In our judgment, these lands are homestead and are claimable by an intermediary under S. 5 (1): if they are used for the purpose of letting out they would be liable to pay fair and equitable ground-rent under the proviso to sub-s. (1) of section 56. The High Court was, we think, in error in relying upon the definition of "factory" used inthe Factories Act, 1948. The scheme and subject of the Factories Act are different. The Act is intended to regulate labour in factories, to protect workmen from being subjected to unduly long working hours, for making provisions for healthy and sanitary conditions of service, and for protecting the workmen from industrial hazards.The definition of "factory" in the Factories Act cannot be a guide, much less a useful guide, in determining the meaning of the expression "factory" as used in the Bihar Land Reforms Act, 1950. The liability to pay rent under the Bihar Land Reforms Act, 1950, on the footing that the land remained in the possession of the intermediary on which buildings or structures used as golas, factories or mills, for the purpose of trade, manufacture or commerce must be determined on the terms used in the Bihar Land Reforms Act, and not by incorporating words used in another statute of which the scheme and object are different7. The revenue authorities erred in holding that the entire area of 83 bighas odd was liable to be assessed to rent under S. 7 (1) of the Bihar Land Reforms Act, 1950. Undoubtedly an area of 12 bighas 9 kathas 7 dhurs is liable to be assessed to rent under Section 7(1) of the Act. If there are other lands which strictly fall within the expression" buildings or structures together with the lands" used as golas, factories or mills for the purpose of trade, manufacture or commerce, it will be open to the Collector to assess those lands to rent under S. 7(1), but the lands not covered by buildings and structures used for golas, factories or mills, will be governed by S. 5(1) of the Act8. We are, on the materials on the record, unable to specify the buildings and lands falling within S. 7 of the Act for the purpose of determination of assessment of rent. The evidence on the record before us is not clear as to what structures or buildings stand on the lands in the outer enclosure and the purpose for which they are used. We are also not clear as to the precise meaning of the expression "golas" used in S. 7 - the expression not being defined in the Act4. In our view, the order passed by the High Court cannot be sustained. It appears that there are two enclosures which comprise the total area of 83 bighas odd in respect of which the dispute arises. One is the inner enclosure in which are situate the buildings of the factory in which sugar is manufactured and the process of distillation of liquor is carried on. The outer enclosure consists of an area of 71 bighas 2 kathas and 12 dhurs. In the statement of land in the Khas possession of the company all these lands are described as used for residential quarters, cutcheri, dispensary,, bungalows, outhouses, kitchen quarters, latrines, garage, club, control office, watertank, "bakery house", cane office quarters, godowns,, weighbridge house,l etc." The dispute raised by the Company is that the land on which these buildings stand is homestead, and is governed by S. 5 of the Act.
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Purshotam Das Goyal Vs. Hon'Ble Mr. Justice B. S. Dhillon And Ors | under s. 19 of the Act from an order issuing notice as nothing yet has been decided by the High Court. Mr. Mohan Behari Lai, learned counsel for the appellant combated this argument and submitted that an appeal does lie to this Court as a matter of right under s. 19.In our opinion, the preliminary objection raised on behalf of the, respondents is well-founded and must be accepted as correct. S. 19(1) says An appeal shall lie as of right from any order or decision of the High Court in the exercise of its jurisdiction to punish for contempt-"(a) where the order or decision is that of a single judge, to a Bench of not less than two Judges of the Court;(b) where the order or decision is that of a Bench, to the Supreme Court: Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court."3. would appear from a plain reading of the section that an appeal shall lie to this Court as a matter of right from any order or decision of a bench of the High Court if the order has been made in the exercise of its jurisdiction to punish for contempt. No appeal can lie as a matter of right from any kind of order made by the High Court in the proceeding for contempt: The proceeding is initiated under s. 17 by issuance of a notice. Thereafter, there may be many interlocutory orders passed in the said proceeding by the High Court. It could not be the intention of the legislature to provide for an appeal to this Court as a matter of right from each and every such order made by the High Court. The order or the decision must be such that it decides some bone of contention raised before the High Court affecting the right of the party aggrieved. Mere initiation of a proceeding for contempt by the issuance, of the notice on the prima facie view that the case is a fit one for drawing up the proceeding, does not decide any question. This Court, for the first time, cannot be asked in such an appeal to decide whether the person proceeded against has committed contempt of the High Court or not. The matter has to be decided either finally or, may be. even at an earlier stage an order is made, which does decide a contention raised by the alleged contemner asking the, High Court to drop the, proceeding. It is neither possible, nor advisable, to make an exhaustive list of the typo of orders which may be appealable to this Court under S . 19. A final order, surely, will be appealable. Our attention was drawn by Mr. Mohan Behari Lai, to S. 20 of the Act which provides:"No Court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed."4. He submitted that initiation of the proceeding by the High Court will be, without jurisdiction if it is in violation of S. 20. It may be so. If the alleged contemner in response to the notice appears before the High Court and asks it to drop the proceeding on the. ground of its being barred under s. 20 of the Act but the High Court holds that the, proceeding is not barred, it may well be that an appeal would lie to this Court under S. 19 from such an order although the proceeding has remained pending in the High Court. We are not called upon to express our final opinion in regard to such an order, but we merely mention this type of order by way of an example to show that even orders made at some intermittent stage in the proceeding may be, appealable under S. 19. In our considered judgment, an order merely initiating the proceeding without anything further, does not decide anything against the alleged contemner and cannot be appealed against as a matter of right tinder S. 19. in a given case special leave may be granted under Art. 136 of the Constitution from an order initiating the proceeding. But that is entirely a different matter. What we are deciding in, this case is that the present appeal filed under S. 19 (1) of the Act does not lie and is incompetent.5. We find some support to, the view expressed by us above from the decision of this Court in Baradakanta Mishra v. Orissa High Court, (A.I.R. 1976 S.C. 1206.) where it has been held that no appeal lies to this Court under s. 19 of the Act from an order rejecting the prayer of t he alleged contemner for bearing the case piecemeal.Mr. Lai placed reliance on the observations of this Court in Baradakanta Mishra v. Justice Gatikrushna Mishra ([1975] 1 S.C.R. 524 (at pp. 531-32).). What has been decided therein is this: that on a reference made by the Advocate General if the Court declines to take cognisance and to initiate proceeding for contempt, the order is not an order initiating contempt proceeding. Surely, it is not appealable under S. 19. But there are no observations by this Court nor on the facts of that case there can be any, . to show that an appeal would lie to, this Court from an order of the High Court merely initiating the proceeding by issuance of a notice. We, may repeat that it may be, a different matter if the order does decide some disputes raised before it by the contemner asking it to drop the proceeding on one ground or the other. But unless and until there is some order or decision of the High Court adjudicating upon any matter raised before it by the parties, affecting their right, the mere order issuing the notice is not appealable.6. | 0[ds]In our opinion, the preliminary objection raised on behalf of the, respondents is well-founded and must be accepted as correct. S. 19(1) says An appeal shall lie as of right from any order or decision of the High Court in the exercise of its jurisdiction to punish forwhere the order or decision is that of a single judge, to a Bench of not less than two Judges of the Court;(b) where the order or decision is that of a Bench, to the Supreme Court: Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supremewould appear from a plain reading of the section that an appeal shall lie to this Court as a matter of right from any order or decision of a bench of the High Court if the order has been made in the exercise of its jurisdiction to punish for contempt. No appeal can lie as a matter of right from any kind of order made by the High Court in the proceeding for contempt: The proceeding is initiated under s. 17 by issuance of a notice. Thereafter, there may be many interlocutory orders passed in the said proceeding by the High Court. It could not be the intention of the legislature to provide for an appeal to this Court as a matter of right from each and every such order made by the High Court. The order or the decision must be such that it decides some bone of contention raised before the High Court affecting the right of the party aggrieved. Mere initiation of a proceeding for contempt by the issuance, of the notice on the prima facie view that the case is a fit one for drawing up the proceeding, does not decide any question. This Court, for the first time, cannot be asked in such an appeal to decide whether the person proceeded against has committed contempt of the High Court or not. The matter has to be decided either finally or, may be. even at an earlier stage an order is made, which does decide a contention raised by the alleged contemner asking the, High Court to drop the, proceeding. It is neither possible, nor advisable, to make an exhaustive list of the typo of orders which may be appealable to this Court under S . 19. A final order, surely, will be appealable. Our attention was drawn by Mr. Mohan Behari Lai, to S. 20 of the Act whichCourt shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have beenfind some support to, the view expressed by us above from the decision of this Court in Baradakanta Mishra v. Orissa High Court, (A.I.R. 1976 S.C. 1206.) where it has been held that no appeal lies to this Court under s. 19 of the Act from an order rejecting the prayer of t he alleged contemner for bearing the case piecemeal.Mr. Lai placed reliance on the observations of this Court in Baradakanta Mishra v. Justice Gatikrushna Mishra ([1975] 1 S.C.R. 524 (at pp. 531-32).). What has been decided therein is this: that on a reference made by the Advocate General if the Court declines to take cognisance and to initiate proceeding for contempt, the order is not an order initiating contempt proceeding. Surely, it is not appealable under S. 19. But there are no observations by this Court nor on the facts of that case there can be any, . to show that an appeal would lie to, this Court from an order of the High Court merely initiating the proceeding by issuance of a notice. We, may repeat that it may be, a different matter if the order does decide some disputes raised before it by the contemner asking it to drop the proceeding on one ground or the other. But unless and until there is some order or decision of the High Court adjudicating upon any matter raised before it by the parties, affecting their right, the mere order issuing the notice is not appealable. | 0 | 1,242 | 783 | ### 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:
under s. 19 of the Act from an order issuing notice as nothing yet has been decided by the High Court. Mr. Mohan Behari Lai, learned counsel for the appellant combated this argument and submitted that an appeal does lie to this Court as a matter of right under s. 19.In our opinion, the preliminary objection raised on behalf of the, respondents is well-founded and must be accepted as correct. S. 19(1) says An appeal shall lie as of right from any order or decision of the High Court in the exercise of its jurisdiction to punish for contempt-"(a) where the order or decision is that of a single judge, to a Bench of not less than two Judges of the Court;(b) where the order or decision is that of a Bench, to the Supreme Court: Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court."3. would appear from a plain reading of the section that an appeal shall lie to this Court as a matter of right from any order or decision of a bench of the High Court if the order has been made in the exercise of its jurisdiction to punish for contempt. No appeal can lie as a matter of right from any kind of order made by the High Court in the proceeding for contempt: The proceeding is initiated under s. 17 by issuance of a notice. Thereafter, there may be many interlocutory orders passed in the said proceeding by the High Court. It could not be the intention of the legislature to provide for an appeal to this Court as a matter of right from each and every such order made by the High Court. The order or the decision must be such that it decides some bone of contention raised before the High Court affecting the right of the party aggrieved. Mere initiation of a proceeding for contempt by the issuance, of the notice on the prima facie view that the case is a fit one for drawing up the proceeding, does not decide any question. This Court, for the first time, cannot be asked in such an appeal to decide whether the person proceeded against has committed contempt of the High Court or not. The matter has to be decided either finally or, may be. even at an earlier stage an order is made, which does decide a contention raised by the alleged contemner asking the, High Court to drop the, proceeding. It is neither possible, nor advisable, to make an exhaustive list of the typo of orders which may be appealable to this Court under S . 19. A final order, surely, will be appealable. Our attention was drawn by Mr. Mohan Behari Lai, to S. 20 of the Act which provides:"No Court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed."4. He submitted that initiation of the proceeding by the High Court will be, without jurisdiction if it is in violation of S. 20. It may be so. If the alleged contemner in response to the notice appears before the High Court and asks it to drop the proceeding on the. ground of its being barred under s. 20 of the Act but the High Court holds that the, proceeding is not barred, it may well be that an appeal would lie to this Court under S. 19 from such an order although the proceeding has remained pending in the High Court. We are not called upon to express our final opinion in regard to such an order, but we merely mention this type of order by way of an example to show that even orders made at some intermittent stage in the proceeding may be, appealable under S. 19. In our considered judgment, an order merely initiating the proceeding without anything further, does not decide anything against the alleged contemner and cannot be appealed against as a matter of right tinder S. 19. in a given case special leave may be granted under Art. 136 of the Constitution from an order initiating the proceeding. But that is entirely a different matter. What we are deciding in, this case is that the present appeal filed under S. 19 (1) of the Act does not lie and is incompetent.5. We find some support to, the view expressed by us above from the decision of this Court in Baradakanta Mishra v. Orissa High Court, (A.I.R. 1976 S.C. 1206.) where it has been held that no appeal lies to this Court under s. 19 of the Act from an order rejecting the prayer of t he alleged contemner for bearing the case piecemeal.Mr. Lai placed reliance on the observations of this Court in Baradakanta Mishra v. Justice Gatikrushna Mishra ([1975] 1 S.C.R. 524 (at pp. 531-32).). What has been decided therein is this: that on a reference made by the Advocate General if the Court declines to take cognisance and to initiate proceeding for contempt, the order is not an order initiating contempt proceeding. Surely, it is not appealable under S. 19. But there are no observations by this Court nor on the facts of that case there can be any, . to show that an appeal would lie to, this Court from an order of the High Court merely initiating the proceeding by issuance of a notice. We, may repeat that it may be, a different matter if the order does decide some disputes raised before it by the contemner asking it to drop the proceeding on one ground or the other. But unless and until there is some order or decision of the High Court adjudicating upon any matter raised before it by the parties, affecting their right, the mere order issuing the notice is not appealable.6.
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0
### Explanation:
In our opinion, the preliminary objection raised on behalf of the, respondents is well-founded and must be accepted as correct. S. 19(1) says An appeal shall lie as of right from any order or decision of the High Court in the exercise of its jurisdiction to punish forwhere the order or decision is that of a single judge, to a Bench of not less than two Judges of the Court;(b) where the order or decision is that of a Bench, to the Supreme Court: Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supremewould appear from a plain reading of the section that an appeal shall lie to this Court as a matter of right from any order or decision of a bench of the High Court if the order has been made in the exercise of its jurisdiction to punish for contempt. No appeal can lie as a matter of right from any kind of order made by the High Court in the proceeding for contempt: The proceeding is initiated under s. 17 by issuance of a notice. Thereafter, there may be many interlocutory orders passed in the said proceeding by the High Court. It could not be the intention of the legislature to provide for an appeal to this Court as a matter of right from each and every such order made by the High Court. The order or the decision must be such that it decides some bone of contention raised before the High Court affecting the right of the party aggrieved. Mere initiation of a proceeding for contempt by the issuance, of the notice on the prima facie view that the case is a fit one for drawing up the proceeding, does not decide any question. This Court, for the first time, cannot be asked in such an appeal to decide whether the person proceeded against has committed contempt of the High Court or not. The matter has to be decided either finally or, may be. even at an earlier stage an order is made, which does decide a contention raised by the alleged contemner asking the, High Court to drop the, proceeding. It is neither possible, nor advisable, to make an exhaustive list of the typo of orders which may be appealable to this Court under S . 19. A final order, surely, will be appealable. Our attention was drawn by Mr. Mohan Behari Lai, to S. 20 of the Act whichCourt shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have beenfind some support to, the view expressed by us above from the decision of this Court in Baradakanta Mishra v. Orissa High Court, (A.I.R. 1976 S.C. 1206.) where it has been held that no appeal lies to this Court under s. 19 of the Act from an order rejecting the prayer of t he alleged contemner for bearing the case piecemeal.Mr. Lai placed reliance on the observations of this Court in Baradakanta Mishra v. Justice Gatikrushna Mishra ([1975] 1 S.C.R. 524 (at pp. 531-32).). What has been decided therein is this: that on a reference made by the Advocate General if the Court declines to take cognisance and to initiate proceeding for contempt, the order is not an order initiating contempt proceeding. Surely, it is not appealable under S. 19. But there are no observations by this Court nor on the facts of that case there can be any, . to show that an appeal would lie to, this Court from an order of the High Court merely initiating the proceeding by issuance of a notice. We, may repeat that it may be, a different matter if the order does decide some disputes raised before it by the contemner asking it to drop the proceeding on one ground or the other. But unless and until there is some order or decision of the High Court adjudicating upon any matter raised before it by the parties, affecting their right, the mere order issuing the notice is not appealable.
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Harcharan Singh Vs. Mohinder Singh & Ors | Singh who was the Sub-Divisional Officer Muktsar, and also the Electoral Registration Officer of Gidderbha. Assembly Constituency at the relevant time deposed that the application Ext. P. W. 1/5 was presented before him and that he had ordered that the application be referred for disposal to the Tahsildar who held the office of the assistant Electoral Registration Officer. In cross-examination the witness stated that he had "desired the Tahsildar to supply a certified copy of the electoral roll" and that he had never asked him to submit a report like the one endorsed on the reverse of the application. But the Tahsildar purported to make a report and the application with that report was delivered to the appellant in pursuance of his application. We see no reason to disbelieve the statement of Niranjan Singh. The answer referred to earlier is elicited in cross-examination by counsel for the respondent, and no reason has been, suggested as to why the witness should bear false testimony. The recitals in the application filed by the appellant are somewhat obscure. It was written in Punjabi and the official translation and the translation made by the learned Judge in the High Court did not wholly tally. The order passed by the Electoral Registration Officer which he has deposed to is not amongst the papers. But at the foot of the application it is recorded that a certified copy was allowed on January 19, 1967. If the story of the Electoral Registration Officer is to be believed, he had directed that a certified copy of the electoral roll be furnished and by some mischance the Tahsildar made a report in which there was first a clerical mistake with regard to the name of the Constituency, and again the two entries relating to the house number and the age of the appellant were omitted. Exhibit P. W. 1/4 was filed with the nomination papers and the returning officer was apparently satisfied that the requisite details were duly furnished Exhibit P. W. 1/4 was also before the returning officer at the time of the scrutiny of the nomination papers. The contesting candidate and his agents were present and no objection was raised to the validity or the sufficiency of the document produced with the nomination paper in purported compliance with Section 38(5). The returning officer, however, thought it necessary to make an inquiry as to the age of the appellant and recorded that he was satisfied that the appellant was above the age of twenty-five. Absence of the number of the house in which the appellant lived from the copy produced does not appear to have been regarded as of any consequences It was not suggested in the High Court, nor is it suggested before us that the appellant was not competent to stand as a candidate for the Zira Constituency either on account of any disqualification or on the ground that he was not an elector of any constituency; it is only urged that Ex. P. W. 1/4 was not a certified copy of the relevant entries in the electoral roll.7. The statutory requirements of election law must be strictly observed. An election dispute is a statutory proceeding unknown to the common law : it is not an action at law or in equity. As a copy of the relevant entries from the electoral roll relating to the appellant it was indisputably defective. But under Section 36,(4) the Returning Officer is entitled to accept the nomination paper even if it be defective, if the defect is not of a substantial character: indeed he is enjoined not to reject the nomination paper unless the defect is of a substantial character. The details for identifying the appellant as an elector were duly furnished. His age was mentioned in the nomination paper, though it was not to be found in the certified copy produced by the appellant. No objection was raised to the acceptance of the nomination paper on behalf of the contesting candidate and his agents present at the scrutiny. The returning, officer satisfied himself by personal inquiry that the appellant was above the age of twenty-five and therefore competent to stand for election. It is true that he did not apply his mind to the absence of house number entered in the electoral register. But he did not come to the conclusion that even though the copy produced was defective the defect was of a substantial character. The decision of the returning officer in the matter is not final and in appropriate cases it is open to the Court to reach a different conclusion in an election petition. But on a careful review of the proceedings of the Returning Officer we are of the opinion that the returning officer did not err in not rejecting the nomination paper : the defects in text. P W. 1/4 were not of a substantial character.8. The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the purity of the election process, and the Courts will not ordinarily minimise their operation.If there was any reason to think that the appellant was negligent, or that on account of defects which were found in the copy produced by the appellant the purity of the election process was likely to be affected we would have been loath to disagree with the High Court. But in this case the appellant moved the Electoral Registration Officer, for a copy certifying the correctness of the entries in the list which had been supplied to him, and the Electoral Registration Officer supplied to him a copy which though defective, did include sufficient particulars for identifying the appellant. No objection was raised before the Returning Officer and that officer after holding an inquiry was apparently of the view that there was no defect which could be regarded as of a substantial character. We do not think that any ground is made out for disagreeing with the view of the Returning Officer. | 0[ds]5. The appellant concedes that with his nomination paper he did not produce the electoral roll or a copy of the relevant part thereof of the Gidderbha Constituency. He, however, pleaded that at the time of the scrutiny of the nomination papers he had produced before the returning officer copies of the electoral roll, and had requested that officer to keep the copies of the roll on his file if he needed them, and the returning officer had said that he did not need the copies of the electoral roll. This case was not set up by the appellant in his reply to the election petition. The returning officer Sher Singh Sindhu was summoned to appear before the High Court to produce certain documents in his custody. Sher Singh Sindhu personally appeared in Court and tendered the documents called for, but the appellant did not ask the Trial Judge to administer him oath and to examine him as a witness. There is no written record about the production of the electoral roll before the returning officer. In the order passed by the returning officer dated January 21, l967, the returning officer has referred to the production of a certificate, but not to the production of the electoral roll. We therefore agree with the High Court that the case set up by the appellant that he had produced copies of the electoral roll or relevant parts thereof before the returning officer at the time of the scrutiny of nomination, papers cannot be accepted as true.The statutory requirements of election law must be strictly observed. An election dispute is a statutory proceeding unknown to the common law : it is not an action at law or in equity. As a copy of the relevant entries from the electoral roll relating to the appellant it was indisputably defective. But under Section 36,(4) the Returning Officer is entitled to accept the nomination paper even if it be defective, if the defect is not of a substantial character: indeed he is enjoined not to reject the nomination paper unless the defect is of a substantial character. The details for identifying the appellant as an elector were duly furnished. His age was mentioned in the nomination paper, though it was not to be found in the certified copy produced by the appellant. No objection was raised to the acceptance of the nomination paper on behalf of the contesting candidate and his agents present at the scrutiny. The returning, officer satisfied himself by personal inquiry that the appellant was above the age of twenty-five and therefore competent to stand for election. It is true that he did not apply his mind to the absence of house number entered in the electoral register. But he did not come to the conclusion that even though the copy produced was defective the defect was of a substantial character. The decision of the returning officer in the matter is not final and in appropriate cases it is open to the Court to reach a different conclusion in an election petition. But on a careful review of the proceedings of the Returning Officer we are of the opinion that the returning officer did not err in not rejecting the nomination paper : the defects in text. P W. 1/4 were not of a substantial character.8. The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the purity of the election process, and the Courts will not ordinarily minimise their operation.If there was any reason to think that the appellant was negligent, or that on account of defects which were found in the copy produced by the appellant the purity of the election process was likely to be affected we would have been loath to disagree with the High Court. But in this case the appellant moved the Electoral Registration Officer, for a copy certifying the correctness of the entries in the list which had been supplied to him, and the Electoral Registration Officer supplied to him a copy which though defective, did include sufficient particulars for identifying the appellant. No objection was raised before the Returning Officer and that officer after holding an inquiry was apparently of the view that there was no defect which could be regarded as of a substantial character. We do not think that any ground is made out for disagreeing with the view of the Returning Officer. | 0 | 3,213 | 792 | ### 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:
Singh who was the Sub-Divisional Officer Muktsar, and also the Electoral Registration Officer of Gidderbha. Assembly Constituency at the relevant time deposed that the application Ext. P. W. 1/5 was presented before him and that he had ordered that the application be referred for disposal to the Tahsildar who held the office of the assistant Electoral Registration Officer. In cross-examination the witness stated that he had "desired the Tahsildar to supply a certified copy of the electoral roll" and that he had never asked him to submit a report like the one endorsed on the reverse of the application. But the Tahsildar purported to make a report and the application with that report was delivered to the appellant in pursuance of his application. We see no reason to disbelieve the statement of Niranjan Singh. The answer referred to earlier is elicited in cross-examination by counsel for the respondent, and no reason has been, suggested as to why the witness should bear false testimony. The recitals in the application filed by the appellant are somewhat obscure. It was written in Punjabi and the official translation and the translation made by the learned Judge in the High Court did not wholly tally. The order passed by the Electoral Registration Officer which he has deposed to is not amongst the papers. But at the foot of the application it is recorded that a certified copy was allowed on January 19, 1967. If the story of the Electoral Registration Officer is to be believed, he had directed that a certified copy of the electoral roll be furnished and by some mischance the Tahsildar made a report in which there was first a clerical mistake with regard to the name of the Constituency, and again the two entries relating to the house number and the age of the appellant were omitted. Exhibit P. W. 1/4 was filed with the nomination papers and the returning officer was apparently satisfied that the requisite details were duly furnished Exhibit P. W. 1/4 was also before the returning officer at the time of the scrutiny of the nomination papers. The contesting candidate and his agents were present and no objection was raised to the validity or the sufficiency of the document produced with the nomination paper in purported compliance with Section 38(5). The returning officer, however, thought it necessary to make an inquiry as to the age of the appellant and recorded that he was satisfied that the appellant was above the age of twenty-five. Absence of the number of the house in which the appellant lived from the copy produced does not appear to have been regarded as of any consequences It was not suggested in the High Court, nor is it suggested before us that the appellant was not competent to stand as a candidate for the Zira Constituency either on account of any disqualification or on the ground that he was not an elector of any constituency; it is only urged that Ex. P. W. 1/4 was not a certified copy of the relevant entries in the electoral roll.7. The statutory requirements of election law must be strictly observed. An election dispute is a statutory proceeding unknown to the common law : it is not an action at law or in equity. As a copy of the relevant entries from the electoral roll relating to the appellant it was indisputably defective. But under Section 36,(4) the Returning Officer is entitled to accept the nomination paper even if it be defective, if the defect is not of a substantial character: indeed he is enjoined not to reject the nomination paper unless the defect is of a substantial character. The details for identifying the appellant as an elector were duly furnished. His age was mentioned in the nomination paper, though it was not to be found in the certified copy produced by the appellant. No objection was raised to the acceptance of the nomination paper on behalf of the contesting candidate and his agents present at the scrutiny. The returning, officer satisfied himself by personal inquiry that the appellant was above the age of twenty-five and therefore competent to stand for election. It is true that he did not apply his mind to the absence of house number entered in the electoral register. But he did not come to the conclusion that even though the copy produced was defective the defect was of a substantial character. The decision of the returning officer in the matter is not final and in appropriate cases it is open to the Court to reach a different conclusion in an election petition. But on a careful review of the proceedings of the Returning Officer we are of the opinion that the returning officer did not err in not rejecting the nomination paper : the defects in text. P W. 1/4 were not of a substantial character.8. The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the purity of the election process, and the Courts will not ordinarily minimise their operation.If there was any reason to think that the appellant was negligent, or that on account of defects which were found in the copy produced by the appellant the purity of the election process was likely to be affected we would have been loath to disagree with the High Court. But in this case the appellant moved the Electoral Registration Officer, for a copy certifying the correctness of the entries in the list which had been supplied to him, and the Electoral Registration Officer supplied to him a copy which though defective, did include sufficient particulars for identifying the appellant. No objection was raised before the Returning Officer and that officer after holding an inquiry was apparently of the view that there was no defect which could be regarded as of a substantial character. We do not think that any ground is made out for disagreeing with the view of the Returning Officer.
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0
### Explanation:
5. The appellant concedes that with his nomination paper he did not produce the electoral roll or a copy of the relevant part thereof of the Gidderbha Constituency. He, however, pleaded that at the time of the scrutiny of the nomination papers he had produced before the returning officer copies of the electoral roll, and had requested that officer to keep the copies of the roll on his file if he needed them, and the returning officer had said that he did not need the copies of the electoral roll. This case was not set up by the appellant in his reply to the election petition. The returning officer Sher Singh Sindhu was summoned to appear before the High Court to produce certain documents in his custody. Sher Singh Sindhu personally appeared in Court and tendered the documents called for, but the appellant did not ask the Trial Judge to administer him oath and to examine him as a witness. There is no written record about the production of the electoral roll before the returning officer. In the order passed by the returning officer dated January 21, l967, the returning officer has referred to the production of a certificate, but not to the production of the electoral roll. We therefore agree with the High Court that the case set up by the appellant that he had produced copies of the electoral roll or relevant parts thereof before the returning officer at the time of the scrutiny of nomination, papers cannot be accepted as true.The statutory requirements of election law must be strictly observed. An election dispute is a statutory proceeding unknown to the common law : it is not an action at law or in equity. As a copy of the relevant entries from the electoral roll relating to the appellant it was indisputably defective. But under Section 36,(4) the Returning Officer is entitled to accept the nomination paper even if it be defective, if the defect is not of a substantial character: indeed he is enjoined not to reject the nomination paper unless the defect is of a substantial character. The details for identifying the appellant as an elector were duly furnished. His age was mentioned in the nomination paper, though it was not to be found in the certified copy produced by the appellant. No objection was raised to the acceptance of the nomination paper on behalf of the contesting candidate and his agents present at the scrutiny. The returning, officer satisfied himself by personal inquiry that the appellant was above the age of twenty-five and therefore competent to stand for election. It is true that he did not apply his mind to the absence of house number entered in the electoral register. But he did not come to the conclusion that even though the copy produced was defective the defect was of a substantial character. The decision of the returning officer in the matter is not final and in appropriate cases it is open to the Court to reach a different conclusion in an election petition. But on a careful review of the proceedings of the Returning Officer we are of the opinion that the returning officer did not err in not rejecting the nomination paper : the defects in text. P W. 1/4 were not of a substantial character.8. The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the purity of the election process, and the Courts will not ordinarily minimise their operation.If there was any reason to think that the appellant was negligent, or that on account of defects which were found in the copy produced by the appellant the purity of the election process was likely to be affected we would have been loath to disagree with the High Court. But in this case the appellant moved the Electoral Registration Officer, for a copy certifying the correctness of the entries in the list which had been supplied to him, and the Electoral Registration Officer supplied to him a copy which though defective, did include sufficient particulars for identifying the appellant. No objection was raised before the Returning Officer and that officer after holding an inquiry was apparently of the view that there was no defect which could be regarded as of a substantial character. We do not think that any ground is made out for disagreeing with the view of the Returning Officer.
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BHIM SINGH Vs. RADHEY SHYAM | 1. Heard learned counsel for the parties. 2. Leave granted. 3. The appellant was charged for commission of an offence under Sections 420, 467, 468 and 120B IPC in FIR No.599 dated 25th September, 2015. Pursuant thereto, the appellant approached this Court for grant of anticipatory bail under Section 438 but that was not granted. However, the appellant was directed to surrender and thereafter he surrendered. The appellant remained in jail for about 14 days. The appellant had been granted bail under section 439 CrPC, 1973 by the court of Additional Sessions Judge, Panipat on 27th June, 2016. Immediately thereafter a complaint was made by complainant-Radhey Shyam to the Superintendent of Police, Panipat on 29th June, 2016 against the appellant Bhim Singh of giving threats to withdraw the case otherwise he would be killed. Similar complaint was alleged to have been made on 27th July, 2016. 4. The police has not registered a case on the basis of the complaints. The learned Sessions Court vide order dated 13th December, 2016 has rejected the application moved for cancellation of bail by the respondent-Radhey Shyam. However, the High Court by the impugned order dated 5th July, 2017 has cancelled the bail that was granted by the Additional Sessions Judge, Panipat under section 439 CrPC, 1973. 5. In view of facts and circumstances of the case, we are of the opinion that from the kind of complaints which were filed immediately on grant of bail does not inspire confidence, there was no sufficient ground for cancellation of bail at this stage. Thus, we are satisfied that the order of the Sessions Court was appropriate. The High Court has taken the decision taking into consideration the merits of the case antecedents etc. 6. The High Court has also observed that in spite of opportunity given to the accused to return the money he has not returned it. The aforesaid aspect, in our opinion, could not be a ground for cancellation of bail. | 1[ds]5. In view of facts and circumstances of the case, we are of the opinion that from the kind of complaints which were filed immediately on grant of bail does not inspire confidence, there was no sufficient ground for cancellation of bail at this stage. Thus, we are satisfied that the order of the Sessions Court was appropriate. The High Court has taken the decision taking into consideration the merits of the case antecedents etc.6. The High Court has also observed that in spite of opportunity given to the accused to return the money he has not returned it. The aforesaid aspect, in our opinion, could not be a ground for cancellation of bail. | 1 | 372 | 129 | ### 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. Heard learned counsel for the parties. 2. Leave granted. 3. The appellant was charged for commission of an offence under Sections 420, 467, 468 and 120B IPC in FIR No.599 dated 25th September, 2015. Pursuant thereto, the appellant approached this Court for grant of anticipatory bail under Section 438 but that was not granted. However, the appellant was directed to surrender and thereafter he surrendered. The appellant remained in jail for about 14 days. The appellant had been granted bail under section 439 CrPC, 1973 by the court of Additional Sessions Judge, Panipat on 27th June, 2016. Immediately thereafter a complaint was made by complainant-Radhey Shyam to the Superintendent of Police, Panipat on 29th June, 2016 against the appellant Bhim Singh of giving threats to withdraw the case otherwise he would be killed. Similar complaint was alleged to have been made on 27th July, 2016. 4. The police has not registered a case on the basis of the complaints. The learned Sessions Court vide order dated 13th December, 2016 has rejected the application moved for cancellation of bail by the respondent-Radhey Shyam. However, the High Court by the impugned order dated 5th July, 2017 has cancelled the bail that was granted by the Additional Sessions Judge, Panipat under section 439 CrPC, 1973. 5. In view of facts and circumstances of the case, we are of the opinion that from the kind of complaints which were filed immediately on grant of bail does not inspire confidence, there was no sufficient ground for cancellation of bail at this stage. Thus, we are satisfied that the order of the Sessions Court was appropriate. The High Court has taken the decision taking into consideration the merits of the case antecedents etc. 6. The High Court has also observed that in spite of opportunity given to the accused to return the money he has not returned it. The aforesaid aspect, in our opinion, could not be a ground for cancellation of bail.
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1
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5. In view of facts and circumstances of the case, we are of the opinion that from the kind of complaints which were filed immediately on grant of bail does not inspire confidence, there was no sufficient ground for cancellation of bail at this stage. Thus, we are satisfied that the order of the Sessions Court was appropriate. The High Court has taken the decision taking into consideration the merits of the case antecedents etc.6. The High Court has also observed that in spite of opportunity given to the accused to return the money he has not returned it. The aforesaid aspect, in our opinion, could not be a ground for cancellation of bail.
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D. Macropollo & Co. Private Limited Vs. D. Macropollo & Co. (Private) Ltd., Employees' Union & Others | by respondent No. 1 that at Asansol and Jharia two salesmen were working directly under the appellant and that they had not been placed under any distributor. This circumstances incidentally brings out in bold relief the main fact that in all other places salesmen have been put under distributors by the appellant. In regard to the two places where the old system is still continuing, the director Mr. Phillippou has given a reasonable and satisfactory explanation. The salesman at Jharia is the section salesman and the sales at the place are very small and so the distributor was not willing to engage a man under him. The salesman in Asansol was retained by the company and then transferred to Kharagpur section as a section salesman. The job of the section salesman is to travel from one section to another, according to the programme fixed for him by the supervisor. That is why the services of these salesmen have not been terminated by the appellant.We have no doubt that on the record it must be taken as fully proved that the appellant has adopted the re-organisation scheme and the same has been implemented in all the areas where the appellants business is conducted, between 1954 to 1957. It would be fantastic to suggest that in adopting this scheme of reorganisation over such a wide area the appellant was actuated by malice against its employees in Calcutta or that the scheme is a mere device adopted by the appellant for the purpose of discharging them.11. There is one more point which needs to be considered. The learned judge has observed in his judgment that the appellant has"got the fundamental right to re-organise their business or close a particular department or section with a view to rationalise or economise their business."As we have already pointed out, the learned judge has not considered the merits of the re-organisation scheme, though it would appear from the earlier observations in his judgment that he intended so to do.If the re-organised scheme has been adopted by the appellant for reasons of economy and convenience, and it has been introduced in all the areas of its business, the fact that its implementation would lead to the discharge of some of the employees would have nonmaterial bearing on the question as to whether the re-organisation has been adopted by the appellant bona fide or not; and so the learned judge was clearly in error in attaching importance to the consequence of re-organisation, in regard to the fourteen salesmen in the present case. Their discharge and retrenchment would have to be considered as an inevitable, though very unfortunate, consequence of the re-organised scheme which the employer, acting bona fide, was entitled to adopt.But apart from this technical or legal aspect, on the merits the learned judge has obviously been unfair in assuming that the discharged employees would not have been taken up by the distributor Ramlal Singh. Ramlal Singh was ill at the time when the evidence was recorded before the learned judge; but this clerk Mr. Datta has been examined and his evidence clearly shows that the appellant had used its good offices with its distributor, as a result of which Ramlal Singh had agreed to employ all the fourteen workmen discharged by the appellant. Indeed, two of them have already been employed by Mr. Ramlal Singh, and he had to employ several other workmen when he found that the rest of the workmen discharged by the appellant did not offer to work for him. the attitude adopted by the discharged workmen leaves no room for doubt that they wanted to fight for their rights and were not willing to take up the employment under Ramlal Singh, which they thought, may be rightly, was not as secure and safe as their employment under the appellant. The workmen were undoubtedly entitled to fight for what they though to be their rights, but then it would not be fair to balance the appellant on the ground that no alternative employment was made available by the appellant to its discharged workmen. Thus in our opinion the finding of the learned judge that the failure of the appellant to secure to its discharged workmen alternative employment on the same or similar terms tends to show that the discharge by the appellant of its workmen was intended to victimise them cannot be accepted as sound.12. We have carefully considered the reasons given by the learned judge in support of his finding that the discharge by the appellant of its fourteen outdoor salesmen amounts to an unfair labour practice and that its plea of re-organisation is nothing but a colourable device to throw off these workmen, and we have felt no hesitation in coming to the conclusion that the said findings are not only not supported by any evidence but are clearly inconsistent with it. That is why we accept Mr. Dephtarys argument that these findings are perverse and must be reversed.In the result, we hold that the discharge of the fourteen outdoor salesmen which was the subject-matter of the reference before the Labour Court is justified and so the workmen are not entitled to any relief. In view of these findings it is unnecessary to consider the other questions sought to be raised by Mr. Daphtary before us about the status of the discharged workmen. The order passed by the Labour Court is accordingly set aside and the appeal is allowed. In regard to costs, Mr. Daphtary no doubt urged that in view of the result he was entitled to his costs; but ultimately, he fairly left this matter to our discretion. Having regard to the fact that the twelve outdoor salesmen discharged by the appellant who did not choose to take up employment with its distributor were unemployed during the time the appeal was pending in this court, we think, we should not direct them to pay the appellants costs of this appeal. Parties will accordingly bear their own costs in this court. | 1[ds]We have merely to look at the correspondence which has been produced before the Labour Court to be satisfied that the criticism made by the learned judge against the appellant on this ground is not at all justified. Let us consider some of the relevant correspodence. It appears that on the 15th and 25th of November, 1953, theof the union wrote to the appellant setting forth some of unions demands. Onthe director wrote back in reply regretting his inability to meet theearlier than the 8th December owing to pressure of work and owing to his indisposition. Theacknowledged receipt of this letter on the 8th of December and thankfully agreed to meet the director, as suggested by him, that evening. So it would be clear that the director had agreed to meet the union, as desired by it. Onthe appellant received from theof Respondent No. 1 a statement about some demands of the appellants employees. The appellant replied this communication on the 6th August, 1954, made its comments on some of the demands and requested theof the union to furnish to the appellant and names of those whom the union claimed to represent and who had joined the union. The letter stated that the appellant regretted that it had not been supplied with these particulars though the appellant had repeatedly called for them. In his letter ofnt sincerely thanked the appellant for the sympathetic tone of the letter under reply and requested the appellant to recognise the union and promised to furnish the appellant with the necessary particulars required by the appellant. It is clear that these particulars were not supplied to the appellant until the stage for reference of the dispute to the Labour Court was reached. This letter was accompanied by an annexure A, which is described as a charter of the minimum demands. Correspondence on similar lines has been carried on between the parties untilwhen the appellant gave a detailed reply to the demands made by the Union. According to thedemands were frivolous and speculative. Theof the union is employed in the Imperial Tobacco Co. India Ltd. and the alleged dispute has been put forward for the sole purpose of injuring this company by creating disaffection among its workmen when in fact there is noa conference appears to have been held in the presence of the Labour Officer on the 9th March and the 23rd April, 1955. On the 12th May, 1955, the appellant wrote to the Labour Officer recording the main points which the appellant had made at the said conference. It is significant that on the "charter of demands" the union was apparently not able to persuade the State Government to make a reference under the Industrial Disputes Act. However that may be, this correspondence clearly shows that the learned judge unfortunately made anwhen he observed that the appellant was obstinate in the matter of its dealings with its workmen, that the appellant refused to meet the union representatives and would not even attend a conference arranged for that purpose. It may be that the appellant did not look with favour on the formation of the union but that is very different from saying that the attitude adopted by the appellant in this matter was so obstructive and hostile that an inference of mala fide can be drawn in regard to the implementation of thescheme, which came much later in February, 1957.8. The learned Judge has then referred to the matter of Mr. Rahman who was discharged by the appellant and thenand he has observed that since theof Mr. Rahman was through the efforts of the union, the appellant was displeased with the activities of the union. This conclusion is entirely inconsistent with the evidence given both by the director of the appellant and Mr. Rahman himself. It is common ground that Mr. Rahman was first discharged and thenin May, 1952 and this was at the intervention of Mr. Rahmans friend, Mr. Banerjee. Indeed, the respondent No. 1, the union, had not come into existence until July 1953, and it would therefore be patently wrong to hold that theof Mr. Rahman was due to the efforts of respondent No. 1.9. The next circumstance on which the learned Judge has relied is what he describes as "invidious discrimination in the matter of distribution of bonus" made by the appellant. The learned judge has assumed that for bonus the indoor workmen were paid one full months wages and the outdoor workmen at a flat rate of Rs. 70 only. There is no evidence whatever on the record to justify the statement of the learned Judge that the outdoor workmen were given bonus at flat rate of Rs. 70 as distinguished from one months wages paid to the indoor workers in that behalf. We are unable to understand how the learned judge came to make this erroneous statement. For the appellant detailed statements had been filed in respect of each one of its workmen showing the amount of bonus paid to the workmen from 1953 onwards. Indeed, the learned judge himself has observed in another part of his judgment that the "company granted bonus and that sometimes generously too cannot be much disputed." The statement filed by the appellant as well as the oral evidence given by the witnesses on behalf of respondent No. 1 clearly show that the conclusion of the learned judge that the appellant was guilty of making invidious discrimination between the indoor workmen and outdoor workmen is entirely unjustified. It may be that the appellant took the view that the indoor workmen worked longer than the outdoor salesmen and so the bonus paid to the two sets of workmen may not exactly be the same; but the disparity in the amounts of bonus paid to the two sets of workmen can be treated as "invidious discrimination" only if it is shown that the disparity is very large and is otherwise not properly explained. On the record as it stands we see no ground to support the very strong finding made by the learned judge against the appellant in this behalf.10. Then ,the learned Judge has described the implementation of the scheme in Calcutta in some graphic words by observing that "the company all at once fell upon the workmen with the letter of discharge datedfrom the fact that such unbalanced language is generally out of place in judicial adjudications, on the merits the learned judge was gravely in error in ignoring the fact that what happened in February, 1957 at Calcutta represented the last phase of the implementation of the scheme of reorganisation adopted by the appellant as early as 1954.The terms of service of the outdoor salesmen seem to suggest that their services were liable to be terminated after a weeks notice. The appellant, however, paid each one of these employees one months salary in lieu of notice andsalary per year of service by way of gratuity or compensation. If only the learned judge had not completely lost sight of the basic fact that the appellants case was that the discharge of the fourteen outdoor salesmen was in pursuance of a larger policy of reorganisation he would not have felt justified in passing the very severe strictures that he has passed against the appellant in this case. It is true that is has been brought out in evidence by respondent No. 1 that at Asansol and Jharia two salesmen were working directly under the appellant and that they had not been placed under any distributor. This circumstances incidentally brings out in bold relief the main fact that in all other places salesmen have been put under distributors by the appellant. In regard to the two places where the old system is still continuing, the director Mr. Phillippou has given a reasonable and satisfactory explanation. The salesman at Jharia is the section salesman and the sales at the place are very small and so the distributor was not willing to engage a man under him. The salesman in Asansol was retained by the company and then transferred to Kharagpur section as a section salesman. The job of the section salesman is to travel from one section to another, according to the programme fixed for him by the supervisor. That is why the services of these salesmen have not been terminated by the appellant.We have no doubt that on the record it must be taken as fully proved that the appellant has adopted thescheme and the same has been implemented in all the areas where the appellants business is conducted, between 1954 to 1957. It would be fantastic to suggest that in adopting this scheme of reorganisation over such a wide area the appellant was actuated by malice against its employees in Calcutta or that the scheme is a mere device adopted by the appellant for the purpose of discharging them.11. There is one more point which needs to be considered. The learned judge has observed in his judgment that the appellantthe fundamental right totheir business or close a particular department or section with a view to rationalise or economise theirwe have already pointed out, the learned judge has not considered the merits of thescheme, though it would appear from the earlier observations in his judgment that he intended so to do.If thescheme has been adopted by the appellant for reasons of economy and convenience, and it has been introduced in all the areas of its business, the fact that its implementation would lead to the discharge of some of the employees would have nonmaterial bearing on the question as to whether thehas been adopted by the appellant bona fide or not; and so the learned judge was clearly in error in attaching importance to the consequence ofin regard to the fourteen salesmen in the present case. Their discharge and retrenchment would have to be considered as an inevitable, though very unfortunate, consequence of thescheme which the employer, acting bona fide, was entitled to adopt.But apart from this technical or legal aspect, on the merits the learned judge has obviously been unfair in assuming that the discharged employees would not have been taken up by the distributor Ramlal Singh. Ramlal Singh was ill at the time when the evidence was recorded before the learned judge; but this clerk Mr. Datta has been examined and his evidence clearly shows that the appellant had used its good offices with its distributor, as a result of which Ramlal Singh had agreed to employ all the fourteen workmen discharged by the appellant. Indeed, two of them have already been employed by Mr. Ramlal Singh, and he had to employ several other workmen when he found that the rest of the workmen discharged by the appellant did not offer to work for him. the attitude adopted by the discharged workmen leaves no room for doubt that they wanted to fight for their rights and were not willing to take up the employment under Ramlal Singh, which they thought, may be rightly, was not as secure and safe as their employment under the appellant. The workmen were undoubtedly entitled to fight for what they though to be their rights, but then it would not be fair to balance the appellant on the ground that no alternative employment was made available by the appellant to its discharged workmen. Thus in our opinion the finding of the learned judge that the failure of the appellant to secure to its discharged workmen alternative employment on the same or similar terms tends to show that the discharge by the appellant of its workmen was intended to victimise them cannot be accepted as sound.12. We have carefully considered the reasons given by the learned judge in support of his finding that the discharge by the appellant of its fourteen outdoor salesmen amounts to an unfair labour practice and that its plea ofis nothing but a colourable device to throw off these workmen, and we have felt no hesitation in coming to the conclusion that the said findings are not only not supported by any evidence but are clearly inconsistent with it. That is why we accept Mr. Dephtarys argument that these findings are perverse and must be reversed.In the result, we hold that the discharge of the fourteen outdoor salesmen which was theof the reference before the Labour Court is justified and so the workmen are not entitled to any relief. In view of these findings it is unnecessary to consider the other questions sought to be raised by Mr. Daphtary before us about the status of the discharged workmen. The order passed by the Labour Court is accordingly set aside and the appeal is allowed. In regard to costs, Mr. Daphtary no doubt urged that in view of the result he was entitled to his costs; but ultimately, he fairly left this matter to our discretion. Having regard to the fact that the twelve outdoor salesmen discharged by the appellant who did not choose to take up employment with its distributor were unemployed during the time the appeal was pending in this court, we think, we should not direct them to pay the appellants costs of this appeal. Parties will accordingly bear their own costs in this court. | 1 | 4,619 | 2,339 | ### 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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by respondent No. 1 that at Asansol and Jharia two salesmen were working directly under the appellant and that they had not been placed under any distributor. This circumstances incidentally brings out in bold relief the main fact that in all other places salesmen have been put under distributors by the appellant. In regard to the two places where the old system is still continuing, the director Mr. Phillippou has given a reasonable and satisfactory explanation. The salesman at Jharia is the section salesman and the sales at the place are very small and so the distributor was not willing to engage a man under him. The salesman in Asansol was retained by the company and then transferred to Kharagpur section as a section salesman. The job of the section salesman is to travel from one section to another, according to the programme fixed for him by the supervisor. That is why the services of these salesmen have not been terminated by the appellant.We have no doubt that on the record it must be taken as fully proved that the appellant has adopted the re-organisation scheme and the same has been implemented in all the areas where the appellants business is conducted, between 1954 to 1957. It would be fantastic to suggest that in adopting this scheme of reorganisation over such a wide area the appellant was actuated by malice against its employees in Calcutta or that the scheme is a mere device adopted by the appellant for the purpose of discharging them.11. There is one more point which needs to be considered. The learned judge has observed in his judgment that the appellant has"got the fundamental right to re-organise their business or close a particular department or section with a view to rationalise or economise their business."As we have already pointed out, the learned judge has not considered the merits of the re-organisation scheme, though it would appear from the earlier observations in his judgment that he intended so to do.If the re-organised scheme has been adopted by the appellant for reasons of economy and convenience, and it has been introduced in all the areas of its business, the fact that its implementation would lead to the discharge of some of the employees would have nonmaterial bearing on the question as to whether the re-organisation has been adopted by the appellant bona fide or not; and so the learned judge was clearly in error in attaching importance to the consequence of re-organisation, in regard to the fourteen salesmen in the present case. Their discharge and retrenchment would have to be considered as an inevitable, though very unfortunate, consequence of the re-organised scheme which the employer, acting bona fide, was entitled to adopt.But apart from this technical or legal aspect, on the merits the learned judge has obviously been unfair in assuming that the discharged employees would not have been taken up by the distributor Ramlal Singh. Ramlal Singh was ill at the time when the evidence was recorded before the learned judge; but this clerk Mr. Datta has been examined and his evidence clearly shows that the appellant had used its good offices with its distributor, as a result of which Ramlal Singh had agreed to employ all the fourteen workmen discharged by the appellant. Indeed, two of them have already been employed by Mr. Ramlal Singh, and he had to employ several other workmen when he found that the rest of the workmen discharged by the appellant did not offer to work for him. the attitude adopted by the discharged workmen leaves no room for doubt that they wanted to fight for their rights and were not willing to take up the employment under Ramlal Singh, which they thought, may be rightly, was not as secure and safe as their employment under the appellant. The workmen were undoubtedly entitled to fight for what they though to be their rights, but then it would not be fair to balance the appellant on the ground that no alternative employment was made available by the appellant to its discharged workmen. Thus in our opinion the finding of the learned judge that the failure of the appellant to secure to its discharged workmen alternative employment on the same or similar terms tends to show that the discharge by the appellant of its workmen was intended to victimise them cannot be accepted as sound.12. We have carefully considered the reasons given by the learned judge in support of his finding that the discharge by the appellant of its fourteen outdoor salesmen amounts to an unfair labour practice and that its plea of re-organisation is nothing but a colourable device to throw off these workmen, and we have felt no hesitation in coming to the conclusion that the said findings are not only not supported by any evidence but are clearly inconsistent with it. That is why we accept Mr. Dephtarys argument that these findings are perverse and must be reversed.In the result, we hold that the discharge of the fourteen outdoor salesmen which was the subject-matter of the reference before the Labour Court is justified and so the workmen are not entitled to any relief. In view of these findings it is unnecessary to consider the other questions sought to be raised by Mr. Daphtary before us about the status of the discharged workmen. The order passed by the Labour Court is accordingly set aside and the appeal is allowed. In regard to costs, Mr. Daphtary no doubt urged that in view of the result he was entitled to his costs; but ultimately, he fairly left this matter to our discretion. Having regard to the fact that the twelve outdoor salesmen discharged by the appellant who did not choose to take up employment with its distributor were unemployed during the time the appeal was pending in this court, we think, we should not direct them to pay the appellants costs of this appeal. Parties will accordingly bear their own costs in this court.
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strictures that he has passed against the appellant in this case. It is true that is has been brought out in evidence by respondent No. 1 that at Asansol and Jharia two salesmen were working directly under the appellant and that they had not been placed under any distributor. This circumstances incidentally brings out in bold relief the main fact that in all other places salesmen have been put under distributors by the appellant. In regard to the two places where the old system is still continuing, the director Mr. Phillippou has given a reasonable and satisfactory explanation. The salesman at Jharia is the section salesman and the sales at the place are very small and so the distributor was not willing to engage a man under him. The salesman in Asansol was retained by the company and then transferred to Kharagpur section as a section salesman. The job of the section salesman is to travel from one section to another, according to the programme fixed for him by the supervisor. That is why the services of these salesmen have not been terminated by the appellant.We have no doubt that on the record it must be taken as fully proved that the appellant has adopted thescheme and the same has been implemented in all the areas where the appellants business is conducted, between 1954 to 1957. It would be fantastic to suggest that in adopting this scheme of reorganisation over such a wide area the appellant was actuated by malice against its employees in Calcutta or that the scheme is a mere device adopted by the appellant for the purpose of discharging them.11. There is one more point which needs to be considered. The learned judge has observed in his judgment that the appellantthe fundamental right totheir business or close a particular department or section with a view to rationalise or economise theirwe have already pointed out, the learned judge has not considered the merits of thescheme, though it would appear from the earlier observations in his judgment that he intended so to do.If thescheme has been adopted by the appellant for reasons of economy and convenience, and it has been introduced in all the areas of its business, the fact that its implementation would lead to the discharge of some of the employees would have nonmaterial bearing on the question as to whether thehas been adopted by the appellant bona fide or not; and so the learned judge was clearly in error in attaching importance to the consequence ofin regard to the fourteen salesmen in the present case. Their discharge and retrenchment would have to be considered as an inevitable, though very unfortunate, consequence of thescheme which the employer, acting bona fide, was entitled to adopt.But apart from this technical or legal aspect, on the merits the learned judge has obviously been unfair in assuming that the discharged employees would not have been taken up by the distributor Ramlal Singh. Ramlal Singh was ill at the time when the evidence was recorded before the learned judge; but this clerk Mr. Datta has been examined and his evidence clearly shows that the appellant had used its good offices with its distributor, as a result of which Ramlal Singh had agreed to employ all the fourteen workmen discharged by the appellant. Indeed, two of them have already been employed by Mr. Ramlal Singh, and he had to employ several other workmen when he found that the rest of the workmen discharged by the appellant did not offer to work for him. the attitude adopted by the discharged workmen leaves no room for doubt that they wanted to fight for their rights and were not willing to take up the employment under Ramlal Singh, which they thought, may be rightly, was not as secure and safe as their employment under the appellant. The workmen were undoubtedly entitled to fight for what they though to be their rights, but then it would not be fair to balance the appellant on the ground that no alternative employment was made available by the appellant to its discharged workmen. Thus in our opinion the finding of the learned judge that the failure of the appellant to secure to its discharged workmen alternative employment on the same or similar terms tends to show that the discharge by the appellant of its workmen was intended to victimise them cannot be accepted as sound.12. We have carefully considered the reasons given by the learned judge in support of his finding that the discharge by the appellant of its fourteen outdoor salesmen amounts to an unfair labour practice and that its plea ofis nothing but a colourable device to throw off these workmen, and we have felt no hesitation in coming to the conclusion that the said findings are not only not supported by any evidence but are clearly inconsistent with it. That is why we accept Mr. Dephtarys argument that these findings are perverse and must be reversed.In the result, we hold that the discharge of the fourteen outdoor salesmen which was theof the reference before the Labour Court is justified and so the workmen are not entitled to any relief. In view of these findings it is unnecessary to consider the other questions sought to be raised by Mr. Daphtary before us about the status of the discharged workmen. The order passed by the Labour Court is accordingly set aside and the appeal is allowed. In regard to costs, Mr. Daphtary no doubt urged that in view of the result he was entitled to his costs; but ultimately, he fairly left this matter to our discretion. Having regard to the fact that the twelve outdoor salesmen discharged by the appellant who did not choose to take up employment with its distributor were unemployed during the time the appeal was pending in this court, we think, we should not direct them to pay the appellants costs of this appeal. Parties will accordingly bear their own costs in this court.
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Workmen Vs. Management Of Dunlop Rubber Company Of India Limited | paid nearly 60 to 62% as bonus. Prima facie, we are of the view that even if the claim of the company for rehabilitation is rejected completely, still on the basis of the figures worked out in the above charts, after taking into account the rebate in Income-tax that will be received by the company, the workmen have been paid bonus at a rate which has been accepted as correct by this Court and as such they cannot have any grievance.18. Regarding the claim for rehabilitation, the company had filed three statements. Exts. M-15, M-16 and M-17 are charts relating to the buildings, plant and machinery and moulds. The company has also adduced evidence in respect of the claims made in these statements. Mr. Ramamurthi has attacked the claim for rehabilitation made by the company. When the charts prepared by the management regarding rehabilitation were before the Tribunal, we find that several matters spoken to by the witnesses regarding the charts do not appear to have been seriously challenged by the workmen. Regarding the multipliers and divisor for plant and machinery, including moulds, these have been spoken to by the factory Engineer, MW-3. Regarding the buildings, the Architect, MW-4, has also given evidence. Regarding all these matters, the Chartered Accountant attached to the auditors of the respondent company, has given evidence as MW-2. The appellant has not objected to the data adduced as well as the documents produced by the company. No suggestions have been made to these witnesses that the figures on the basis of which the rehabilitation claim was made, were in any way erroneous. It is before us for the first time that Mr. Ramamurthi has urged that the evidence of these witnesses is not sufficient to justify the claim for rehabilitation made by the company. Mr. Ramamurthi has referred us to the various decisions regarding the nature of the evidence that is required to be produced by a company when it makes a claim for rehabilitation. Mr. B. Sen invited our attention to the award dated February 5, 1960 of the Industrial Tribunal, Calcutta, Ext. M-26, which related to the claim of the workmen of the respondent company in Calcutta for bonus for the year 1957. In that award, the Tribunal has very elaborately gone into the evidence adduced by the company and has allowed a sum of Rupees 2,18,36,983, as calculated by the company, as rehabilitation charges. When once a Tribunal has considered a similar claim and has adopted on the basis of the evidence adduced by the parties, normally the amount awarded towards rehabilitation claim should be adopted. We do not say that it is conclusive. But that award is certainly entitled to due consideration at our hands. In that award the Tribunal has worked out the rehabilitation claim for the year 1957. The charts filed by the company regarding rehabilitation, though for the years 1962 and 1963, were worked out only on the basis of the replacement cost of the year 1958. We are mentioning this aspect because if the appellants case was that the Tribunal, when working out the claim for 1957 in Ext. M-26, has not properly appreciated evidence, it should have elicited from the witnesses, who deposed on behalf of the company, that the figures furnished by them are not correct and cannot be accepted. No such attempt has been made by the. appellant. Mr. Sen, learned counsel, relied on the decision of this Court in M/s. Hindustan Motors Ltd. case (1968) 2 SCR 311 = (AIR 1968 SC 963 ) and pointed out that according to that amount decision, the only permissible deduction from the total amount claimed as required for rehabilitation by the appellant can be the depreciation amounting to Rs. 5.17 crores and Rupees 5.75 crores in 1962 and 1963 respectively. He further pointed out that if the amount representing depreciation reserved is taken out of the total reserves, which is established by the evidence, then the balance has been utilised in raw material and hence there were no available liquid assets towards rehabilitation.19. We do not propose to go into the details of the claim for rehabilitation made by the respondent-company, as well as the objections now made on behalf of the workmen to the said claim. The reason is that when evidence, oral and documentary, was adduced by the company before the Tribunal, the appellant has not objected to the data adduced and the documents produced by the management and they have not put any questions to the witnesses to establish that the calculation made by the company is erroneous. There is also the additional fact that from two charts of available surplus for the years 1962 and 1963, reproduced earlier, even without allowing any claim far rehabilitation, the workmen have been paid bonus for the two years in question at rates higher than 60 %. Allowing for the benefit that the management will get by way of tax rebate on the amount of bonus paid, the payment of bonus already made is in accordance with the proportion accepted by this Court vice M/s. Gannon Dunkerley and Co. Ltd. v. Workmen, AIR 1971 SC 2567 . Even on the basis of the calculation to be made, according to the appellant, in respect of the rehabilitation claim, the company will be entitled to some amount at least in that regard. Even if the amount, as contended by Mr. Ramamurthi, is taken into account, the available surplus, as shown in the charts, will be reduced further. The result will be that even the amount paid as bonus already by the company, will be more than what the workmen will be entitled to according to the decisions of this Court. As pointed out earlier, even without making any provision for rehabilitation, the percentage of bonus paid is amply sufficient. Considering the matter from any point of view, there is no question of the workmen being entitled to any additional bonus over and above what has already been paid.20. | 1[ds]We are of the opinion that the Tribunal was justified in accepting the contention of the company that the amounts received as commission and royalties need not he added back.It may be mentioned that the company had deducted from the profits the provision made for retirement gratuities written back. Mr. Sen has quite fairly accepted that the deduction is not justified. Therefore, this item need not be discusseddonations were claimed as deduction in 1963. As a substantial part of the donations was for the National Defence Fund, the Tribunal held that the expenditure was properly incurred and the company was justified in deducting the donations from the profits.Sen accepted that the deduction made by the management under this head is not justified. Even otherwise, the company is not entitled to deduct those amounts, as is clear from the decision of this Court in Voltas Ltd. v. Its Workmen, 1961 (3) SCR 167 = (AIR 1961 SCboth these decisions, the nature of the evidence to sustain a claim for return on working capital has been discussed and laid down. In particular, in the second decision cited above, the various decisions bearing on the point have been exhaustively reviewed. The position emerging from the decisions of this Court is that mere production of aby a company cannot be taken as proof of a claim as to what portion of the reserves has been actually used as working capital. The utilization of any amount from the reserves as working capital has to be proved by an employer by adducing proper evidence by way of affidavit or otherwise, after giving an opportunity to the workmen to contest the correctness of the same inThe company will have to satisfactorily prove that the amount on which return is claimed has been actually used as workingcompany has filed Ext.containing particulars regarding the amount used as working capital for the years 1962 and 1963. It has also filed Ext.the certificate of the Chartered Accountant, that reserves of Rs. 5,83,75,228 and Rs. 6,22,64,083 have been used as working capital in the years 1962 and l963 respectively. MWl has spoken to the contents of Exts.9. The Chartered Accountant of the auditors, who issued the certificate, Ext.has also given evidence asWhen they have spoken about the amounts used as working capital, there is absolutely noby the union regarding these matters. This is not a case where merely the profit and loss account alone has been filed without any further evidence adduced by the management. Mr. Ramamurthi no doubt attempted to satisfy us by a reference to the profit and loss account for the two years that the entire amount claimed by the company could not have been used as working capital. We have gone through the balance sheet and profit and loss account. We are satisfied that the Tribunal has rightly accepted the claim of the management for 4% return on the workingare not inclined to accept this plea of Mr. Ramamurthi. On the other hand, Ext.shows that the company was prepared to take a stand that even without any claim for rehabilitation being allowed in its favour, the available surplus shown in Ext.will establish that the workmen have been paid more than 60 to 62 % of the available surplus as bonus for each of the two years. Ext.does not and cannot be put against the company if it can properly establish a claim for rehabilitation. Before we discuss further the claim for rehabilitation, it is now necessary to work out the figures on the basis of the findings recorded by us earlier. We have accepted the claim for deduction of commission and royalties in favour of the company. We have also accepted its claim for return on the share premium amount of Rupees 70 lakhs. We have disallowed the claim of the company regarding the amount paid by them as donation in 1962. We have allowed the companys claim for return on the working capital on the above basis, two chart have been prepared of the available surplus for the years 1962 and 1963.We do not propose to go into the details of the claim for rehabilitation made by theas well as the objections now made on behalf of the workmen to the said claim. The reason is that when evidence, oral and documentary, was adduced by the company before the Tribunal, the appellant has not objected to the data adduced and the documents produced by the management and they have not put any questions to the witnesses to establish that the calculation made by the company is erroneous. There is also the additional fact that from two charts of available surplus for the years 1962 and 1963, reproduced earlier, even without allowing any claim far rehabilitation, the workmen have been paid bonus for the two years in question at rates higher than 60 %. Allowing for the benefit that the management will get by way of tax rebate on the amount of bonus paid, the payment of bonus already made is in accordance with the proportion accepted by this Court vice M/s. Gannon Dunkerley and Co. Ltd. v. Workmen, AIR 1971 SC 2567 . Even on the basis of the calculation to be made, according to the appellant, in respect of the rehabilitation claim, the company will be entitled to some amount at least in that regard. Even if the amount, as contended by Mr. Ramamurthi, is taken into account, the available surplus, as shown in the charts, will be reduced further. The result will be that even the amount paid as bonus already by the company, will be more than what the workmen will be entitled to according to the decisions of this Court. As pointed out earlier, even without making any provision for rehabilitation, the percentage of bonus paid is amply sufficient. Considering the matter from any point of view, there is no question of the workmen being entitled to any additional bonus over and above what has already been paid. | 1 | 4,404 | 1,074 | ### 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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paid nearly 60 to 62% as bonus. Prima facie, we are of the view that even if the claim of the company for rehabilitation is rejected completely, still on the basis of the figures worked out in the above charts, after taking into account the rebate in Income-tax that will be received by the company, the workmen have been paid bonus at a rate which has been accepted as correct by this Court and as such they cannot have any grievance.18. Regarding the claim for rehabilitation, the company had filed three statements. Exts. M-15, M-16 and M-17 are charts relating to the buildings, plant and machinery and moulds. The company has also adduced evidence in respect of the claims made in these statements. Mr. Ramamurthi has attacked the claim for rehabilitation made by the company. When the charts prepared by the management regarding rehabilitation were before the Tribunal, we find that several matters spoken to by the witnesses regarding the charts do not appear to have been seriously challenged by the workmen. Regarding the multipliers and divisor for plant and machinery, including moulds, these have been spoken to by the factory Engineer, MW-3. Regarding the buildings, the Architect, MW-4, has also given evidence. Regarding all these matters, the Chartered Accountant attached to the auditors of the respondent company, has given evidence as MW-2. The appellant has not objected to the data adduced as well as the documents produced by the company. No suggestions have been made to these witnesses that the figures on the basis of which the rehabilitation claim was made, were in any way erroneous. It is before us for the first time that Mr. Ramamurthi has urged that the evidence of these witnesses is not sufficient to justify the claim for rehabilitation made by the company. Mr. Ramamurthi has referred us to the various decisions regarding the nature of the evidence that is required to be produced by a company when it makes a claim for rehabilitation. Mr. B. Sen invited our attention to the award dated February 5, 1960 of the Industrial Tribunal, Calcutta, Ext. M-26, which related to the claim of the workmen of the respondent company in Calcutta for bonus for the year 1957. In that award, the Tribunal has very elaborately gone into the evidence adduced by the company and has allowed a sum of Rupees 2,18,36,983, as calculated by the company, as rehabilitation charges. When once a Tribunal has considered a similar claim and has adopted on the basis of the evidence adduced by the parties, normally the amount awarded towards rehabilitation claim should be adopted. We do not say that it is conclusive. But that award is certainly entitled to due consideration at our hands. In that award the Tribunal has worked out the rehabilitation claim for the year 1957. The charts filed by the company regarding rehabilitation, though for the years 1962 and 1963, were worked out only on the basis of the replacement cost of the year 1958. We are mentioning this aspect because if the appellants case was that the Tribunal, when working out the claim for 1957 in Ext. M-26, has not properly appreciated evidence, it should have elicited from the witnesses, who deposed on behalf of the company, that the figures furnished by them are not correct and cannot be accepted. No such attempt has been made by the. appellant. Mr. Sen, learned counsel, relied on the decision of this Court in M/s. Hindustan Motors Ltd. case (1968) 2 SCR 311 = (AIR 1968 SC 963 ) and pointed out that according to that amount decision, the only permissible deduction from the total amount claimed as required for rehabilitation by the appellant can be the depreciation amounting to Rs. 5.17 crores and Rupees 5.75 crores in 1962 and 1963 respectively. He further pointed out that if the amount representing depreciation reserved is taken out of the total reserves, which is established by the evidence, then the balance has been utilised in raw material and hence there were no available liquid assets towards rehabilitation.19. We do not propose to go into the details of the claim for rehabilitation made by the respondent-company, as well as the objections now made on behalf of the workmen to the said claim. The reason is that when evidence, oral and documentary, was adduced by the company before the Tribunal, the appellant has not objected to the data adduced and the documents produced by the management and they have not put any questions to the witnesses to establish that the calculation made by the company is erroneous. There is also the additional fact that from two charts of available surplus for the years 1962 and 1963, reproduced earlier, even without allowing any claim far rehabilitation, the workmen have been paid bonus for the two years in question at rates higher than 60 %. Allowing for the benefit that the management will get by way of tax rebate on the amount of bonus paid, the payment of bonus already made is in accordance with the proportion accepted by this Court vice M/s. Gannon Dunkerley and Co. Ltd. v. Workmen, AIR 1971 SC 2567 . Even on the basis of the calculation to be made, according to the appellant, in respect of the rehabilitation claim, the company will be entitled to some amount at least in that regard. Even if the amount, as contended by Mr. Ramamurthi, is taken into account, the available surplus, as shown in the charts, will be reduced further. The result will be that even the amount paid as bonus already by the company, will be more than what the workmen will be entitled to according to the decisions of this Court. As pointed out earlier, even without making any provision for rehabilitation, the percentage of bonus paid is amply sufficient. Considering the matter from any point of view, there is no question of the workmen being entitled to any additional bonus over and above what has already been paid.20.
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We are of the opinion that the Tribunal was justified in accepting the contention of the company that the amounts received as commission and royalties need not he added back.It may be mentioned that the company had deducted from the profits the provision made for retirement gratuities written back. Mr. Sen has quite fairly accepted that the deduction is not justified. Therefore, this item need not be discusseddonations were claimed as deduction in 1963. As a substantial part of the donations was for the National Defence Fund, the Tribunal held that the expenditure was properly incurred and the company was justified in deducting the donations from the profits.Sen accepted that the deduction made by the management under this head is not justified. Even otherwise, the company is not entitled to deduct those amounts, as is clear from the decision of this Court in Voltas Ltd. v. Its Workmen, 1961 (3) SCR 167 = (AIR 1961 SCboth these decisions, the nature of the evidence to sustain a claim for return on working capital has been discussed and laid down. In particular, in the second decision cited above, the various decisions bearing on the point have been exhaustively reviewed. The position emerging from the decisions of this Court is that mere production of aby a company cannot be taken as proof of a claim as to what portion of the reserves has been actually used as working capital. The utilization of any amount from the reserves as working capital has to be proved by an employer by adducing proper evidence by way of affidavit or otherwise, after giving an opportunity to the workmen to contest the correctness of the same inThe company will have to satisfactorily prove that the amount on which return is claimed has been actually used as workingcompany has filed Ext.containing particulars regarding the amount used as working capital for the years 1962 and 1963. It has also filed Ext.the certificate of the Chartered Accountant, that reserves of Rs. 5,83,75,228 and Rs. 6,22,64,083 have been used as working capital in the years 1962 and l963 respectively. MWl has spoken to the contents of Exts.9. The Chartered Accountant of the auditors, who issued the certificate, Ext.has also given evidence asWhen they have spoken about the amounts used as working capital, there is absolutely noby the union regarding these matters. This is not a case where merely the profit and loss account alone has been filed without any further evidence adduced by the management. Mr. Ramamurthi no doubt attempted to satisfy us by a reference to the profit and loss account for the two years that the entire amount claimed by the company could not have been used as working capital. We have gone through the balance sheet and profit and loss account. We are satisfied that the Tribunal has rightly accepted the claim of the management for 4% return on the workingare not inclined to accept this plea of Mr. Ramamurthi. On the other hand, Ext.shows that the company was prepared to take a stand that even without any claim for rehabilitation being allowed in its favour, the available surplus shown in Ext.will establish that the workmen have been paid more than 60 to 62 % of the available surplus as bonus for each of the two years. Ext.does not and cannot be put against the company if it can properly establish a claim for rehabilitation. Before we discuss further the claim for rehabilitation, it is now necessary to work out the figures on the basis of the findings recorded by us earlier. We have accepted the claim for deduction of commission and royalties in favour of the company. We have also accepted its claim for return on the share premium amount of Rupees 70 lakhs. We have disallowed the claim of the company regarding the amount paid by them as donation in 1962. We have allowed the companys claim for return on the working capital on the above basis, two chart have been prepared of the available surplus for the years 1962 and 1963.We do not propose to go into the details of the claim for rehabilitation made by theas well as the objections now made on behalf of the workmen to the said claim. The reason is that when evidence, oral and documentary, was adduced by the company before the Tribunal, the appellant has not objected to the data adduced and the documents produced by the management and they have not put any questions to the witnesses to establish that the calculation made by the company is erroneous. There is also the additional fact that from two charts of available surplus for the years 1962 and 1963, reproduced earlier, even without allowing any claim far rehabilitation, the workmen have been paid bonus for the two years in question at rates higher than 60 %. Allowing for the benefit that the management will get by way of tax rebate on the amount of bonus paid, the payment of bonus already made is in accordance with the proportion accepted by this Court vice M/s. Gannon Dunkerley and Co. Ltd. v. Workmen, AIR 1971 SC 2567 . Even on the basis of the calculation to be made, according to the appellant, in respect of the rehabilitation claim, the company will be entitled to some amount at least in that regard. Even if the amount, as contended by Mr. Ramamurthi, is taken into account, the available surplus, as shown in the charts, will be reduced further. The result will be that even the amount paid as bonus already by the company, will be more than what the workmen will be entitled to according to the decisions of this Court. As pointed out earlier, even without making any provision for rehabilitation, the percentage of bonus paid is amply sufficient. Considering the matter from any point of view, there is no question of the workmen being entitled to any additional bonus over and above what has already been paid.
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Medical Council Of India Vs. State Of Karnataka | teaching beds in the attached hospitals will have to be in the ratio of 7 beds per student admitted. Regulations of the Medical Council, which were approved by the Central Government in 1971, provide for the qualification requirements for appointments of persons to the posts of teachers and visiting Physicians/Surgeons of medical colleges and attached hospitals. 25. In the colleges in the State of Karnataka, the Medical Council prescribed the number of admissions that these colleges could take annually on the basis of these Regulations. Without permission of the Medical Council, the number of admissions could not be more than that prescribed at the time of granting recognition to the college. However, it appears that in violation of the provisions of the Medical Council Act, the universities and the State Government have been allowing increase in admission intake in the medical colleges in the State in total disregard of the regulations and rather in violation thereof. These medical colleges cannot admit students over and above the intake fixed by the Medical Council. These colleges have acted illegally in admitting more students than prescribed. Universities and the State Government had no authority to allow increase in the number of admissions in the medical colleges in the State. When regulations prescribed that number of teaching beds will have to be in the ratio of 7 beds per student admitted any increase in the number of admissions will have corresponding increase in the teaching beds in the attached hospital. These regulations have been over-looked by the universities and the State Government in allowing admissions over and above that fixed by the Medical Council. Respondents have not produced any document to show that increase in admission capacity to medical colleges over that fixed by the Medical Council has any relation to the existence of relevant infrastructure in their respective colleges and that there is also corresponding increase in number of beds for students in the attached hospitals. Standards have been laid by the Medical Council, an expert body, for the purpose of imparting proper medical education and for maintaining uniform standards of medical education throughout the country. Seats in medical colleges cannot be increased indiscriminately without regard to proper infrastructure as per the Regulations of the Medical Council.26. A medical student requires gruelling study and that can be done only if proper facilities are available in a medical college and hospital attached to it has to be well equipped and teaching faculty and doctors have to be competent enough that when a medical student comes out he is perfect in the science of treatment of human beings and is not found wanting in any way. Country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study. The Medical Council, in all fairness, does not wish to invalidate the admissions made in excess of that fixed by it and does not wish to take any action of withdrawing recognition of the medical colleges violating the regulation. Henceforth, however, these medical colleges must restrict the number of admissions fixed by the Medical Council. After the insertion of Sections 10A, 10B and 10C in the Medical Council Act, the Medical Council has framed regulations with the previous approval of the Central Government which were published in the Gazette of India dated September 29, 1993 (though the notification is dated September 20, 1993). Any medical college or institution which wishes to increase the admission capacity in MBBS/higher courses (including diploma/degree/higher specialities) has to apply to the Central Government for the permission along with the permission of the State Government and that of the university with which it is affiliated and in conformity with the regulations framed by the Medical Council. Only the medical college or institution which is recognised by the Medical Council can so apply.27. Having thus held that it is the Medical Council which can prescribe the number of students to be admitted in medical courses in a medical college or institution it is the Central Government alone which can direct increase in the number of admissions but only on the recommendation of the Medical Council. In our opinion, the learned single Judge was right in his view that no medical college can admit any student in excess of its admission capacity fixed by the Medical Council subject to any increase thereof as approved by the Central Goverment and that Sections 10A, 10B and 10C will prevail over Section 53(10) of the State Universities Act and Section 41(b) of the State Capitation Fee Act. To say that the number of students as permitted by the State Government and or University before June 1, 1992 could continue would be allowing an illegality to perpetuate for all time to come. The Division Bench, in court opinion in the impugned judgment was not correct in holding that admission capacity for the purpose of increase or decrease in each of the medical colleges/institutions has got to be determined as on or before June 1, 1992 with reference to what had been fixed by the State Government or the admission capacity fixed by the medical colleges and not with reference to the minimum standard of education prescribed under Section 19A of the Medical Council Act which the Division Bench said were only recommendatory. Nivedita Jains case does not say that all the regulations framed by the Medical Council with the previous approval of the Central Government are directory or mere recommendatory. It is not that only future admission will have to be regulated on the basis of capacity fixed or determined by the Medical Council. Plea of the State Government that power to regulate admission to medical colleges is prerogative of the State has to be rejected.28. What we have said about the authority of the Medical Council under the Indian Medical Council Act would equally apply to the Dental Council under the Dentists Act. | 1[ds]Mr. Dave appearing for the Medical Council submitted that this Court in Nivedita Jains case did not say that all the Regulations framed by the Medical Council under Section 33 of the Medical Council Act were directory. He said that the Court in that case was considering Regulations 1 and 2 only and it had held that while Regulation 1 was mandatory, Regulation 2 was of directory character, i.e., it wasMr. Dave is correct in his submission. The Division Bench in the impugned judgment fell into basic error in holding that this Court in Nivedita Jains case said as if all the Regulations were directory in nature. We may now examine that judgment and a few others cited at Bar.Considering the law laid by this Court in aforementioned judgments and provisions of law, we do not think that the dispute raised by the State of Karnataka is any longer res integra.In the colleges in the State of Karnataka, the Medical Council prescribed the number of admissions that these colleges could take annually on the basis of these Regulations. Without permission of the Medical Council, the number of admissions could not be more than that prescribed at the time of granting recognition to the college. However, it appears that in violation of the provisions of the Medical Council Act, the universities and the State Government have been allowing increase in admission intake in the medical colleges in the State in total disregard of the regulations and rather in violation thereof. These medical colleges cannot admit students over and above the intake fixed by the Medical Council. These colleges have acted illegally in admitting more students than prescribed. Universities and the State Government had no authority to allow increase in the number of admissions in the medical colleges in the State. When regulations prescribed that number of teaching beds will have to be in the ratio of 7 beds per student admitted any increase in the number of admissions will have corresponding increase in the teaching beds in the attached hospital. These regulations have been over-looked by the universities and the State Government in allowing admissions over and above that fixed by the Medical Council. Respondents have not produced any document to show that increase in admission capacity to medical colleges over that fixed by the Medical Council has any relation to the existence of relevant infrastructure in their respective colleges and that there is also corresponding increase in number of beds for students in the attached hospitals. Standards have been laid by the Medical Council, an expert body, for the purpose of imparting proper medical education and for maintaining uniform standards of medical education throughout the country. Seats in medical colleges cannot be increased indiscriminately without regard to proper infrastructure as per the Regulations of the Medical Council.26. A medical student requires gruelling study and that can be done only if proper facilities are available in a medical college and hospital attached to it has to be well equipped and teaching faculty and doctors have to be competent enough that when a medical student comes out he is perfect in the science of treatment of human beings and is not found wanting in any way. Country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study. The Medical Council, in all fairness, does not wish to invalidate the admissions made in excess of that fixed by it and does not wish to take any action of withdrawing recognition of the medical colleges violating the regulation. Henceforth, however, these medical colleges must restrict the number of admissions fixed by the Medical Council. After the insertion of Sections 10A, 10B and 10C in the Medical Council Act, the Medical Council has framed regulations with the previous approval of the Central Government which were published in the Gazette of India dated September 29, 1993 (though the notification is dated September 20, 1993). Any medical college or institution which wishes to increase the admission capacity in MBBS/higher courses (including diploma/degree/higher specialities) has to apply to the Central Government for the permission along with the permission of the State Government and that of the university with which it is affiliated and in conformity with the regulations framed by the Medical Council. Only the medical college or institution which is recognised by the Medical Council can so apply.27. Having thus held that it is the Medical Council which can prescribe the number of students to be admitted in medical courses in a medical college or institution it is the Central Government alone which can direct increase in the number of admissions but only on the recommendation of the Medical Council. In our opinion, the learned single Judge was right in his view that no medical college can admit any student in excess of its admission capacity fixed by the Medical Council subject to any increase thereof as approved by the Central Goverment and that Sections 10A, 10B and 10C will prevail over Section 53(10) of the State Universities Act and Section 41(b) of the State Capitation Fee Act. To say that the number of students as permitted by the State Government and or University before June 1, 1992 could continue would be allowing an illegality to perpetuate for all time to come. The Division Bench, in court opinion in the impugned judgment was not correct in holding that admission capacity for the purpose of increase or decrease in each of the medical colleges/institutions has got to be determined as on or before June 1, 1992 with reference to what had been fixed by the State Government or the admission capacity fixed by the medical colleges and not with reference to the minimum standard of education prescribed under Section 19A of the Medical Council Act which the Division Bench said were only recommendatory. Nivedita Jains case does not say that all the regulations framed by the Medical Council with the previous approval of the Central Government are directory or mere recommendatory. It is not that only future admission will have to be regulated on the basis of capacity fixed or determined by the Medical Council. Plea of the State Government that power to regulate admission to medical colleges is prerogative of the State has to be rejected.28. What we have said about the authority of the Medical Council under the Indian Medical Council Act would equally apply to the Dental Council under the Dentists Act.29. Accordingly, appeal by the Medical Council of India (SLP (C) No. 14839/97) is allowed and the impugned judgment of the Division Bench is set aside and we restore the judgment of the learned single Judge. Other appeals by the State of Karnataka (SLP (C) No. 20035/97) and Rajiv Gandhi Dental College (SLP (C) No. 5471/98) are dismissed. Medical Council of India shall be entitled to costs. | 1 | 12,694 | 1,247 | ### 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:
teaching beds in the attached hospitals will have to be in the ratio of 7 beds per student admitted. Regulations of the Medical Council, which were approved by the Central Government in 1971, provide for the qualification requirements for appointments of persons to the posts of teachers and visiting Physicians/Surgeons of medical colleges and attached hospitals. 25. In the colleges in the State of Karnataka, the Medical Council prescribed the number of admissions that these colleges could take annually on the basis of these Regulations. Without permission of the Medical Council, the number of admissions could not be more than that prescribed at the time of granting recognition to the college. However, it appears that in violation of the provisions of the Medical Council Act, the universities and the State Government have been allowing increase in admission intake in the medical colleges in the State in total disregard of the regulations and rather in violation thereof. These medical colleges cannot admit students over and above the intake fixed by the Medical Council. These colleges have acted illegally in admitting more students than prescribed. Universities and the State Government had no authority to allow increase in the number of admissions in the medical colleges in the State. When regulations prescribed that number of teaching beds will have to be in the ratio of 7 beds per student admitted any increase in the number of admissions will have corresponding increase in the teaching beds in the attached hospital. These regulations have been over-looked by the universities and the State Government in allowing admissions over and above that fixed by the Medical Council. Respondents have not produced any document to show that increase in admission capacity to medical colleges over that fixed by the Medical Council has any relation to the existence of relevant infrastructure in their respective colleges and that there is also corresponding increase in number of beds for students in the attached hospitals. Standards have been laid by the Medical Council, an expert body, for the purpose of imparting proper medical education and for maintaining uniform standards of medical education throughout the country. Seats in medical colleges cannot be increased indiscriminately without regard to proper infrastructure as per the Regulations of the Medical Council.26. A medical student requires gruelling study and that can be done only if proper facilities are available in a medical college and hospital attached to it has to be well equipped and teaching faculty and doctors have to be competent enough that when a medical student comes out he is perfect in the science of treatment of human beings and is not found wanting in any way. Country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study. The Medical Council, in all fairness, does not wish to invalidate the admissions made in excess of that fixed by it and does not wish to take any action of withdrawing recognition of the medical colleges violating the regulation. Henceforth, however, these medical colleges must restrict the number of admissions fixed by the Medical Council. After the insertion of Sections 10A, 10B and 10C in the Medical Council Act, the Medical Council has framed regulations with the previous approval of the Central Government which were published in the Gazette of India dated September 29, 1993 (though the notification is dated September 20, 1993). Any medical college or institution which wishes to increase the admission capacity in MBBS/higher courses (including diploma/degree/higher specialities) has to apply to the Central Government for the permission along with the permission of the State Government and that of the university with which it is affiliated and in conformity with the regulations framed by the Medical Council. Only the medical college or institution which is recognised by the Medical Council can so apply.27. Having thus held that it is the Medical Council which can prescribe the number of students to be admitted in medical courses in a medical college or institution it is the Central Government alone which can direct increase in the number of admissions but only on the recommendation of the Medical Council. In our opinion, the learned single Judge was right in his view that no medical college can admit any student in excess of its admission capacity fixed by the Medical Council subject to any increase thereof as approved by the Central Goverment and that Sections 10A, 10B and 10C will prevail over Section 53(10) of the State Universities Act and Section 41(b) of the State Capitation Fee Act. To say that the number of students as permitted by the State Government and or University before June 1, 1992 could continue would be allowing an illegality to perpetuate for all time to come. The Division Bench, in court opinion in the impugned judgment was not correct in holding that admission capacity for the purpose of increase or decrease in each of the medical colleges/institutions has got to be determined as on or before June 1, 1992 with reference to what had been fixed by the State Government or the admission capacity fixed by the medical colleges and not with reference to the minimum standard of education prescribed under Section 19A of the Medical Council Act which the Division Bench said were only recommendatory. Nivedita Jains case does not say that all the regulations framed by the Medical Council with the previous approval of the Central Government are directory or mere recommendatory. It is not that only future admission will have to be regulated on the basis of capacity fixed or determined by the Medical Council. Plea of the State Government that power to regulate admission to medical colleges is prerogative of the State has to be rejected.28. What we have said about the authority of the Medical Council under the Indian Medical Council Act would equally apply to the Dental Council under the Dentists Act.
### Response:
1
### Explanation:
Medical Council prescribed the number of admissions that these colleges could take annually on the basis of these Regulations. Without permission of the Medical Council, the number of admissions could not be more than that prescribed at the time of granting recognition to the college. However, it appears that in violation of the provisions of the Medical Council Act, the universities and the State Government have been allowing increase in admission intake in the medical colleges in the State in total disregard of the regulations and rather in violation thereof. These medical colleges cannot admit students over and above the intake fixed by the Medical Council. These colleges have acted illegally in admitting more students than prescribed. Universities and the State Government had no authority to allow increase in the number of admissions in the medical colleges in the State. When regulations prescribed that number of teaching beds will have to be in the ratio of 7 beds per student admitted any increase in the number of admissions will have corresponding increase in the teaching beds in the attached hospital. These regulations have been over-looked by the universities and the State Government in allowing admissions over and above that fixed by the Medical Council. Respondents have not produced any document to show that increase in admission capacity to medical colleges over that fixed by the Medical Council has any relation to the existence of relevant infrastructure in their respective colleges and that there is also corresponding increase in number of beds for students in the attached hospitals. Standards have been laid by the Medical Council, an expert body, for the purpose of imparting proper medical education and for maintaining uniform standards of medical education throughout the country. Seats in medical colleges cannot be increased indiscriminately without regard to proper infrastructure as per the Regulations of the Medical Council.26. A medical student requires gruelling study and that can be done only if proper facilities are available in a medical college and hospital attached to it has to be well equipped and teaching faculty and doctors have to be competent enough that when a medical student comes out he is perfect in the science of treatment of human beings and is not found wanting in any way. Country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study. The Medical Council, in all fairness, does not wish to invalidate the admissions made in excess of that fixed by it and does not wish to take any action of withdrawing recognition of the medical colleges violating the regulation. Henceforth, however, these medical colleges must restrict the number of admissions fixed by the Medical Council. After the insertion of Sections 10A, 10B and 10C in the Medical Council Act, the Medical Council has framed regulations with the previous approval of the Central Government which were published in the Gazette of India dated September 29, 1993 (though the notification is dated September 20, 1993). Any medical college or institution which wishes to increase the admission capacity in MBBS/higher courses (including diploma/degree/higher specialities) has to apply to the Central Government for the permission along with the permission of the State Government and that of the university with which it is affiliated and in conformity with the regulations framed by the Medical Council. Only the medical college or institution which is recognised by the Medical Council can so apply.27. Having thus held that it is the Medical Council which can prescribe the number of students to be admitted in medical courses in a medical college or institution it is the Central Government alone which can direct increase in the number of admissions but only on the recommendation of the Medical Council. In our opinion, the learned single Judge was right in his view that no medical college can admit any student in excess of its admission capacity fixed by the Medical Council subject to any increase thereof as approved by the Central Goverment and that Sections 10A, 10B and 10C will prevail over Section 53(10) of the State Universities Act and Section 41(b) of the State Capitation Fee Act. To say that the number of students as permitted by the State Government and or University before June 1, 1992 could continue would be allowing an illegality to perpetuate for all time to come. The Division Bench, in court opinion in the impugned judgment was not correct in holding that admission capacity for the purpose of increase or decrease in each of the medical colleges/institutions has got to be determined as on or before June 1, 1992 with reference to what had been fixed by the State Government or the admission capacity fixed by the medical colleges and not with reference to the minimum standard of education prescribed under Section 19A of the Medical Council Act which the Division Bench said were only recommendatory. Nivedita Jains case does not say that all the regulations framed by the Medical Council with the previous approval of the Central Government are directory or mere recommendatory. It is not that only future admission will have to be regulated on the basis of capacity fixed or determined by the Medical Council. Plea of the State Government that power to regulate admission to medical colleges is prerogative of the State has to be rejected.28. What we have said about the authority of the Medical Council under the Indian Medical Council Act would equally apply to the Dental Council under the Dentists Act.29. Accordingly, appeal by the Medical Council of India (SLP (C) No. 14839/97) is allowed and the impugned judgment of the Division Bench is set aside and we restore the judgment of the learned single Judge. Other appeals by the State of Karnataka (SLP (C) No. 20035/97) and Rajiv Gandhi Dental College (SLP (C) No. 5471/98) are dismissed. Medical Council of India shall be entitled to costs.
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Election Commission Vs. Saka Venkata Subba Rao | unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament.192. (1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final.(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.193. If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State............ when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State.14. As has been stated already, the respondents conviction and sentence in 1942 disqualified him both for being chosen as, and for being, a member of the Legislative Assembly under article, 191 (1) (e) read with section 7 of the Representation of the People Act, 1951,passed by Parliament, the period of five years since his release on 15th August, 1947, not having elapsed before the date of the election. The respondent having thus been under a disqualification since before his nomination on 15th March, 1952, could he be said to have "become" subject to that disqualification within the meaning of article 192? The rival contentions of the parties centred round the true interpretation to be placed on that word in the context of the provisions quoted above.15. The Attorney-General argued that the whole fasciculus of the provisions dealing with "disqualifications of members", viz., articles.190 to 193, should be read together, and as articles 191 and 193 clearly cover both preexisting and supervening disqualifications, articles 190 and 192 should also be similarly understood as relating to both kinds of disqualification. According to him all these provisions together constitute an integral scheme whereby disqualifications are laid down and machinery for determining questions arising in regard to them is also provided. The use of the word "become" in articles 190 (3) and 192 (1) is not inapt, in the context, to include within its scope preexisting disqualifications also, as becoming subject to a disqualification is predicated of "a member of a House of Legislature", and a person who, being already disqualified, gets elected, can, not inappropriately, be said to "become" subject to the disqualification as a member as soon as he is elected. The argument is more ingenious than sound. Article 191, which lays down the same set of disqualifications for election as well as for continuing as a member, and article 193 which prescribes the penalty for sitting and voting when disqualified, are naturally phrased in terms wide enough to cover both preexisting and supervening disqualifications; but it does not necessarily follow that articles 190 (3) and 192 (1) must also be taken to cover both. Their meaning must de end on the language used which, we think, is reasonably plain. In our opinion these two articles go together andprovide a remedy when a member incurs a disqualification after he is elected as a member. Not only do the words " becomes subject" in article 190(3) and "has become subject" in article 192(1) indicate a change in the position of the member after he was elected, but the provision that his seat is to become thereupon vacant, that is to say, the seat which the member was filling theretofore becomes vacant on his becoming disqualified, further reinforces the view that the article contemplates only a sitting member incurring the disability while so sitting. The suggestion that the language used in article 190(3) can equally be applied to a pre-existing disqualification as a member can be supposed to vacate his seat the moment he is elected is a strained and farfetched construction and cannot be accepted. The Attorney-General admitted that if the word " is " were substituted for "becomes" or " has become ", it would more appropriately convey the meaning contended for by him, but he was unable to say why it was not used.16. It was said that on the view that articles 190(3) and 192(1) deal with disqualifications incurred after election as a member, there would be no way of unseating a member who became subject to a disqualification after his nomination and before his election, for, such a disqualification is no ground for challenging the election by an election petition under article 329 of the Constitution read with section 100 of the Representation of the People Act, 1951. If this is an anomaly, it arises out of a lacuna in the latter enactment which could easily have provided for such a contingency, and it cannot be pressed as an argument against the respondents construction of the constitutional provisions. On the other hand, the Attorney-Generals contention might, if accepted, lead to conflicting decisions by the Governor dealing with a reference under article 192 and by the Election Tribunal inquiring into an election petition under section 100 of the Parliamentary statute referrred to above.For the reasons indicated we agree with the learned Judge below in holding that articles 190(3) and 192(1) are applicable only to disqualifications to which a member becomes subject after he is elected as such, and that neither the Governor nor the Commission has jurisdiction to enquire into the respondents disqualification which arose long before his election.17. | 1[ds]In our opinion these two articles go together andprovide a remedy when a member incurs a disqualification after he is elected as a member. Not only do the words " becomes subject" in article 190(3) and "has become subject" in article 192(1) indicate a change in the position of the member after he was elected, but the provision that his seat is to become thereupon vacant, that is to say, the seat which the member was filling theretofore becomes vacant on his becoming disqualified, further reinforces the view that the article contemplates only a sitting member incurring the disability while so sitting. The suggestion that the language used in article 190(3) can equally be applied to a pre-existing disqualification as a member can be supposed to vacate his seat the moment he is elected is a strained and farfetched construction and cannot be accepted. The Attorney-General admitted that if the word " is " were substituted for "becomes" or " has become ", it would more appropriately convey the meaning contended for by him, but he was unable to say why it was notwas said that on the view that articles 190(3) and 192(1) deal with disqualifications incurred after election as a member, there would be no way of unseating a member who became subject to a disqualification after his nomination and before his election, for, such a disqualification is no ground for challenging the election by an election petition under article 329 of the Constitution read with section 100 of the Representation of the People Act, 1951. If this is an anomaly, it arises out of a lacuna in the latter enactment which could easily have provided for such a contingency, and it cannot be pressed as an argument against the respondents construction of the constitutional provisions. On the other hand, the Attorney-Generals contention might, if accepted, lead to conflicting decisions by the Governor dealing with a reference under article 192 and by the Election Tribunal inquiring into an election petition under section 100 of the Parliamentary statute referrred to above.For the reasons indicated we agree with the learned Judge below in holding that articles 190(3) and 192(1) are applicable only to disqualifications to which a member becomes subject after he is elected as such, and that neither the Governor nor the Commission has jurisdiction to enquire into the respondents disqualification which arose long before his election. | 1 | 5,104 | 452 | ### 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:
unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament.192. (1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final.(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.193. If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State............ when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State.14. As has been stated already, the respondents conviction and sentence in 1942 disqualified him both for being chosen as, and for being, a member of the Legislative Assembly under article, 191 (1) (e) read with section 7 of the Representation of the People Act, 1951,passed by Parliament, the period of five years since his release on 15th August, 1947, not having elapsed before the date of the election. The respondent having thus been under a disqualification since before his nomination on 15th March, 1952, could he be said to have "become" subject to that disqualification within the meaning of article 192? The rival contentions of the parties centred round the true interpretation to be placed on that word in the context of the provisions quoted above.15. The Attorney-General argued that the whole fasciculus of the provisions dealing with "disqualifications of members", viz., articles.190 to 193, should be read together, and as articles 191 and 193 clearly cover both preexisting and supervening disqualifications, articles 190 and 192 should also be similarly understood as relating to both kinds of disqualification. According to him all these provisions together constitute an integral scheme whereby disqualifications are laid down and machinery for determining questions arising in regard to them is also provided. The use of the word "become" in articles 190 (3) and 192 (1) is not inapt, in the context, to include within its scope preexisting disqualifications also, as becoming subject to a disqualification is predicated of "a member of a House of Legislature", and a person who, being already disqualified, gets elected, can, not inappropriately, be said to "become" subject to the disqualification as a member as soon as he is elected. The argument is more ingenious than sound. Article 191, which lays down the same set of disqualifications for election as well as for continuing as a member, and article 193 which prescribes the penalty for sitting and voting when disqualified, are naturally phrased in terms wide enough to cover both preexisting and supervening disqualifications; but it does not necessarily follow that articles 190 (3) and 192 (1) must also be taken to cover both. Their meaning must de end on the language used which, we think, is reasonably plain. In our opinion these two articles go together andprovide a remedy when a member incurs a disqualification after he is elected as a member. Not only do the words " becomes subject" in article 190(3) and "has become subject" in article 192(1) indicate a change in the position of the member after he was elected, but the provision that his seat is to become thereupon vacant, that is to say, the seat which the member was filling theretofore becomes vacant on his becoming disqualified, further reinforces the view that the article contemplates only a sitting member incurring the disability while so sitting. The suggestion that the language used in article 190(3) can equally be applied to a pre-existing disqualification as a member can be supposed to vacate his seat the moment he is elected is a strained and farfetched construction and cannot be accepted. The Attorney-General admitted that if the word " is " were substituted for "becomes" or " has become ", it would more appropriately convey the meaning contended for by him, but he was unable to say why it was not used.16. It was said that on the view that articles 190(3) and 192(1) deal with disqualifications incurred after election as a member, there would be no way of unseating a member who became subject to a disqualification after his nomination and before his election, for, such a disqualification is no ground for challenging the election by an election petition under article 329 of the Constitution read with section 100 of the Representation of the People Act, 1951. If this is an anomaly, it arises out of a lacuna in the latter enactment which could easily have provided for such a contingency, and it cannot be pressed as an argument against the respondents construction of the constitutional provisions. On the other hand, the Attorney-Generals contention might, if accepted, lead to conflicting decisions by the Governor dealing with a reference under article 192 and by the Election Tribunal inquiring into an election petition under section 100 of the Parliamentary statute referrred to above.For the reasons indicated we agree with the learned Judge below in holding that articles 190(3) and 192(1) are applicable only to disqualifications to which a member becomes subject after he is elected as such, and that neither the Governor nor the Commission has jurisdiction to enquire into the respondents disqualification which arose long before his election.17.
### Response:
1
### Explanation:
In our opinion these two articles go together andprovide a remedy when a member incurs a disqualification after he is elected as a member. Not only do the words " becomes subject" in article 190(3) and "has become subject" in article 192(1) indicate a change in the position of the member after he was elected, but the provision that his seat is to become thereupon vacant, that is to say, the seat which the member was filling theretofore becomes vacant on his becoming disqualified, further reinforces the view that the article contemplates only a sitting member incurring the disability while so sitting. The suggestion that the language used in article 190(3) can equally be applied to a pre-existing disqualification as a member can be supposed to vacate his seat the moment he is elected is a strained and farfetched construction and cannot be accepted. The Attorney-General admitted that if the word " is " were substituted for "becomes" or " has become ", it would more appropriately convey the meaning contended for by him, but he was unable to say why it was notwas said that on the view that articles 190(3) and 192(1) deal with disqualifications incurred after election as a member, there would be no way of unseating a member who became subject to a disqualification after his nomination and before his election, for, such a disqualification is no ground for challenging the election by an election petition under article 329 of the Constitution read with section 100 of the Representation of the People Act, 1951. If this is an anomaly, it arises out of a lacuna in the latter enactment which could easily have provided for such a contingency, and it cannot be pressed as an argument against the respondents construction of the constitutional provisions. On the other hand, the Attorney-Generals contention might, if accepted, lead to conflicting decisions by the Governor dealing with a reference under article 192 and by the Election Tribunal inquiring into an election petition under section 100 of the Parliamentary statute referrred to above.For the reasons indicated we agree with the learned Judge below in holding that articles 190(3) and 192(1) are applicable only to disqualifications to which a member becomes subject after he is elected as such, and that neither the Governor nor the Commission has jurisdiction to enquire into the respondents disqualification which arose long before his election.
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Pramina Devi (Dead) Thr. LRs Vs. State of Jharkhand | the claimants heavily relied upon the Sale Deed registered between the years 1977 to 1979, which were marked as Exh.2, Exh.2/a, Exh.2/b and Exh.2/c. The Reference Court discarded all the aforesaid sale deeds and dismissed the respective references observing that the valuation of the acquired land has been rightly determined and upheld the awards passed by the Land Acquisition Officer. 2.1 Feeling aggrieved and dissatisfied with the judgments and awards passed by the Reference Court, the original claimants preferred the present appeals before the High Court being First Appeal Nos. 40 of 2007 and 41 of 2007. By the impugned judgment and order, the High Court has observed that the Sale deed Dated 12.02.1979 (Exh.2/a) has to be considered for determination of the market value as the same is in a close proximity in time to the date of notification dated 01.10.1980. By observing so, the High Court has disposed of the appeals and modified the judgments and awards passed by the Reference Court to the extent that the compensation is to be assessed and paid on the basis of the Sale Deed dated 12.02.1979 (Exh.2/a) and not on the basis of the Sale Deed dated 29.12.1976 (Exh.2/c). However, while passing the final order, the High Court has not assessed and/or determined the actual market value and/or compensation to be payable to the landowners. 2.2 Feeling aggrieved and dissatisfied with the impugned judgments and orders passed by the High Court, the original landowners – original claimants have preferred the present appeals. 3. We have heard learned counsel appearing for the respective parties at length. We have also gone through and considered the impugned judgments and orders passed by the High Court. From the impugned judgment and orders passed by the High Court, it can be seen that after holding that Sale Deed dated 12.02.1979 (Exh.2/a) has to be considered for determination of the compensation with respect to the acquired land, there is no further discussion on the area of the land sold by Sale Deed dated 12.02.1979. The High Court has also not discussed at all the sale consideration for which the Sale Deed dated 12.02.1979 was executed. The High Court has also not noted what was the sale consideration so far as the Sale Deed dated 12.02.1979 (Exh.2/a) is concerned. The High court has also not discussed what was the location of the land so far as the Sale Deed dated 12.02.1979 is concerned. The only observation made by the High Court is that as the Sale Deed dated 12.02.1979 is more proximate in time to the date of notification issued under Section 4 of the Act, 1894, i.e., 01.10.1980 as compared to the Sale Deed dated 29.12.1976, therefore, the Sale Deed dated 12.02.1979 is more appropriate to be considered for the purpose of ascertaining the market value of the property on the date of the notification dated 01.10.1980. It is to be noted that there is no detailed discussion by the High Court by taking into account the relevant factors which are required to be taken into consideration while ascertaining the market price as observed and held by this Court in the case of Viluben Jhalejar Contractor Vs. State of Gujarat, (2005) 4 SCC 789 in paragraph 20, which reads as under:- 20. The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-à-vis the land under acquisition by placing the two in juxtaposition. The positive and negative factors are as under: Positive factors Negative factors (i) smallness of size (i) largeness of area (ii) proximity to a road (ii) situation in the interior at a distance from the road (iii) frontage on a road (iii) narrow strip of land with very small frontage compared to depth (iv) nearness to developed area (iv) lower level requiring the depressed portion to be filled up (v) regular shape (v) remoteness from developed locality (vi) level vis-à-vis land under acquisition (vi) some special disadvantageous factors which would deter a purchaser (vii) special value for an owner of an adjoining property to whom it may have some very special advantage 4. It is also required to be noted that there was a time gap of one year and eight months between the Sale Deed dated 12.02.1979 and the Section 4 notification. Therefore, if ultimately, it is found that both are absolutely comparable, in that case, even suitable price rise at the rate of 12% per annum may also have to be considered. However, the High Court has mechanically held that the claimants shall be entitled to the compensation considering the price/sale consideration mentioned in the Sale Deed dated 12.02.1979. While considering the sale deed/sale exemplar, the proximity in time to the date of sale deed and to the date of notification under Section 4 may be a relevant factor but at the same time, other factors, as observed hereinabove are also required to be taken into consideration while determining the actual market price of the acquired land. 5. Even otherwise, it is to be noted that there is no clarity on the actual market price and while passing the final order, the High Court has not stated the exact market value and/or the amount of compensation to be paid. There is no actual assessment and/or determination of market value and/or the compensation. How on such a vague order, a decree can be drawn and how such an order is executable? The judgment must have a clarity on the exact relief that is granted by the Court so that it may not create further complication and/or difficulty in the execution. Every litigant must know what actual relief he has received from the Court. But the impugned judgment and order passed by the High Court lacks total clarity. | 1[ds]3. We have heard learned counsel appearing for the respective parties at length. We have also gone through and considered the impugned judgments and orders passed by the High Court. From the impugned judgment and orders passed by the High Court, it can be seen that after holding that Sale Deed dated 12.02.1979 (Exh.2/a) has to be considered for determination of the compensation with respect to the acquired land, there is no further discussion on the area of the land sold by Sale Deed dated 12.02.1979. The High Court has also not discussed at all the sale consideration for which the Sale Deed dated 12.02.1979 was executed. The High Court has also not noted what was the sale consideration so far as the Sale Deed dated 12.02.1979 (Exh.2/a) is concerned. The High court has also not discussed what was the location of the land so far as the Sale Deed dated 12.02.1979 is concerned. The only observation made by the High Court is that as the Sale Deed dated 12.02.1979 is more proximate in time to the date of notification issued under Section 4 of the Act, 1894, i.e., 01.10.1980 as compared to the Sale Deed dated 29.12.1976, therefore, the Sale Deed dated 12.02.1979 is more appropriate to be considered for the purpose of ascertaining the market value of the property on the date of the notification dated 01.10.1980. It is to be noted that there is no detailed discussion by the High Court by taking into account the relevant factors which are required to be taken into consideration while ascertaining the market price as observed and held by this Court in the case of Viluben Jhalejar Contractor Vs. State of Gujarat, (2005) 4 SCC 789 in paragraph 20, which reads as under:-20. The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-à-vis the land under acquisition by placing the two in juxtaposition. The positive and negative factors are as under: Positive factors Negative factors (i) smallness of size (i) largeness of area (ii) proximity to a road (ii) situation in the interior at a distance from the road (iii) frontage on a road (iii) narrow strip of land with very small frontage compared to depth (iv) nearness to developed area (iv) lower level requiring the depressed portion to be filled up (v) regular shape (v) remoteness from developed locality (vi) level vis-à-vis land under acquisition (vi) some special disadvantageous factors which would deter a purchaser (vii) special value for an owner of an adjoining property to whom it may have some very special advantage 4. It is also required to be noted that there was a time gap of one year and eight months between the Sale Deed dated 12.02.1979 and the Section 4 notification. Therefore, if ultimately, it is found that both are absolutely comparable, in that case, even suitable price rise at the rate of 12% per annum may also have to be considered. However, the High Court has mechanically held that the claimants shall be entitled to the compensation considering the price/sale consideration mentioned in the Sale Deed dated 12.02.1979. While considering the sale deed/sale exemplar, the proximity in time to the date of sale deed and to the date of notification under Section 4 may be a relevant factor but at the same time, other factors, as observed hereinabove are also required to be taken into consideration while determining the actual market price of the acquired land.5. Even otherwise, it is to be noted that there is no clarity on the actual market price and while passing the final order, the High Court has not stated the exact market value and/or the amount of compensation to be paid. There is no actual assessment and/or determination of market value and/or the compensation. How on such a vague order, a decree can be drawn and how such an order is executable? The judgment must have a clarity on the exact relief that is granted by the Court so that it may not create further complication and/or difficulty in the execution. Every litigant must know what actual relief he has received from the Court. But the impugned judgment and order passed by the High Court lacks total clarity. | 1 | 1,260 | 832 | ### 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 claimants heavily relied upon the Sale Deed registered between the years 1977 to 1979, which were marked as Exh.2, Exh.2/a, Exh.2/b and Exh.2/c. The Reference Court discarded all the aforesaid sale deeds and dismissed the respective references observing that the valuation of the acquired land has been rightly determined and upheld the awards passed by the Land Acquisition Officer. 2.1 Feeling aggrieved and dissatisfied with the judgments and awards passed by the Reference Court, the original claimants preferred the present appeals before the High Court being First Appeal Nos. 40 of 2007 and 41 of 2007. By the impugned judgment and order, the High Court has observed that the Sale deed Dated 12.02.1979 (Exh.2/a) has to be considered for determination of the market value as the same is in a close proximity in time to the date of notification dated 01.10.1980. By observing so, the High Court has disposed of the appeals and modified the judgments and awards passed by the Reference Court to the extent that the compensation is to be assessed and paid on the basis of the Sale Deed dated 12.02.1979 (Exh.2/a) and not on the basis of the Sale Deed dated 29.12.1976 (Exh.2/c). However, while passing the final order, the High Court has not assessed and/or determined the actual market value and/or compensation to be payable to the landowners. 2.2 Feeling aggrieved and dissatisfied with the impugned judgments and orders passed by the High Court, the original landowners – original claimants have preferred the present appeals. 3. We have heard learned counsel appearing for the respective parties at length. We have also gone through and considered the impugned judgments and orders passed by the High Court. From the impugned judgment and orders passed by the High Court, it can be seen that after holding that Sale Deed dated 12.02.1979 (Exh.2/a) has to be considered for determination of the compensation with respect to the acquired land, there is no further discussion on the area of the land sold by Sale Deed dated 12.02.1979. The High Court has also not discussed at all the sale consideration for which the Sale Deed dated 12.02.1979 was executed. The High Court has also not noted what was the sale consideration so far as the Sale Deed dated 12.02.1979 (Exh.2/a) is concerned. The High court has also not discussed what was the location of the land so far as the Sale Deed dated 12.02.1979 is concerned. The only observation made by the High Court is that as the Sale Deed dated 12.02.1979 is more proximate in time to the date of notification issued under Section 4 of the Act, 1894, i.e., 01.10.1980 as compared to the Sale Deed dated 29.12.1976, therefore, the Sale Deed dated 12.02.1979 is more appropriate to be considered for the purpose of ascertaining the market value of the property on the date of the notification dated 01.10.1980. It is to be noted that there is no detailed discussion by the High Court by taking into account the relevant factors which are required to be taken into consideration while ascertaining the market price as observed and held by this Court in the case of Viluben Jhalejar Contractor Vs. State of Gujarat, (2005) 4 SCC 789 in paragraph 20, which reads as under:- 20. The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-à-vis the land under acquisition by placing the two in juxtaposition. The positive and negative factors are as under: Positive factors Negative factors (i) smallness of size (i) largeness of area (ii) proximity to a road (ii) situation in the interior at a distance from the road (iii) frontage on a road (iii) narrow strip of land with very small frontage compared to depth (iv) nearness to developed area (iv) lower level requiring the depressed portion to be filled up (v) regular shape (v) remoteness from developed locality (vi) level vis-à-vis land under acquisition (vi) some special disadvantageous factors which would deter a purchaser (vii) special value for an owner of an adjoining property to whom it may have some very special advantage 4. It is also required to be noted that there was a time gap of one year and eight months between the Sale Deed dated 12.02.1979 and the Section 4 notification. Therefore, if ultimately, it is found that both are absolutely comparable, in that case, even suitable price rise at the rate of 12% per annum may also have to be considered. However, the High Court has mechanically held that the claimants shall be entitled to the compensation considering the price/sale consideration mentioned in the Sale Deed dated 12.02.1979. While considering the sale deed/sale exemplar, the proximity in time to the date of sale deed and to the date of notification under Section 4 may be a relevant factor but at the same time, other factors, as observed hereinabove are also required to be taken into consideration while determining the actual market price of the acquired land. 5. Even otherwise, it is to be noted that there is no clarity on the actual market price and while passing the final order, the High Court has not stated the exact market value and/or the amount of compensation to be paid. There is no actual assessment and/or determination of market value and/or the compensation. How on such a vague order, a decree can be drawn and how such an order is executable? The judgment must have a clarity on the exact relief that is granted by the Court so that it may not create further complication and/or difficulty in the execution. Every litigant must know what actual relief he has received from the Court. But the impugned judgment and order passed by the High Court lacks total clarity.
### Response:
1
### Explanation:
3. We have heard learned counsel appearing for the respective parties at length. We have also gone through and considered the impugned judgments and orders passed by the High Court. From the impugned judgment and orders passed by the High Court, it can be seen that after holding that Sale Deed dated 12.02.1979 (Exh.2/a) has to be considered for determination of the compensation with respect to the acquired land, there is no further discussion on the area of the land sold by Sale Deed dated 12.02.1979. The High Court has also not discussed at all the sale consideration for which the Sale Deed dated 12.02.1979 was executed. The High Court has also not noted what was the sale consideration so far as the Sale Deed dated 12.02.1979 (Exh.2/a) is concerned. The High court has also not discussed what was the location of the land so far as the Sale Deed dated 12.02.1979 is concerned. The only observation made by the High Court is that as the Sale Deed dated 12.02.1979 is more proximate in time to the date of notification issued under Section 4 of the Act, 1894, i.e., 01.10.1980 as compared to the Sale Deed dated 29.12.1976, therefore, the Sale Deed dated 12.02.1979 is more appropriate to be considered for the purpose of ascertaining the market value of the property on the date of the notification dated 01.10.1980. It is to be noted that there is no detailed discussion by the High Court by taking into account the relevant factors which are required to be taken into consideration while ascertaining the market price as observed and held by this Court in the case of Viluben Jhalejar Contractor Vs. State of Gujarat, (2005) 4 SCC 789 in paragraph 20, which reads as under:-20. The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-à-vis the land under acquisition by placing the two in juxtaposition. The positive and negative factors are as under: Positive factors Negative factors (i) smallness of size (i) largeness of area (ii) proximity to a road (ii) situation in the interior at a distance from the road (iii) frontage on a road (iii) narrow strip of land with very small frontage compared to depth (iv) nearness to developed area (iv) lower level requiring the depressed portion to be filled up (v) regular shape (v) remoteness from developed locality (vi) level vis-à-vis land under acquisition (vi) some special disadvantageous factors which would deter a purchaser (vii) special value for an owner of an adjoining property to whom it may have some very special advantage 4. It is also required to be noted that there was a time gap of one year and eight months between the Sale Deed dated 12.02.1979 and the Section 4 notification. Therefore, if ultimately, it is found that both are absolutely comparable, in that case, even suitable price rise at the rate of 12% per annum may also have to be considered. However, the High Court has mechanically held that the claimants shall be entitled to the compensation considering the price/sale consideration mentioned in the Sale Deed dated 12.02.1979. While considering the sale deed/sale exemplar, the proximity in time to the date of sale deed and to the date of notification under Section 4 may be a relevant factor but at the same time, other factors, as observed hereinabove are also required to be taken into consideration while determining the actual market price of the acquired land.5. Even otherwise, it is to be noted that there is no clarity on the actual market price and while passing the final order, the High Court has not stated the exact market value and/or the amount of compensation to be paid. There is no actual assessment and/or determination of market value and/or the compensation. How on such a vague order, a decree can be drawn and how such an order is executable? The judgment must have a clarity on the exact relief that is granted by the Court so that it may not create further complication and/or difficulty in the execution. Every litigant must know what actual relief he has received from the Court. But the impugned judgment and order passed by the High Court lacks total clarity.
|
Benaras State Bank Ltd Vs. Commissioner Of Income-Tax, Lucknow | Shah, Ag. C.J.1. By order dated August 23, 1968, we called for a supplementary statement on the issue whether dividend warrants were delivered by the Glass Works to the Bank on August 3 1949. The Tribunal has submitted a statement of the case that the only relevant facts proved are that the dividend was declared on July 25, 1949 and the Bank encashed the dividend warrants on December 31, 1949. The appeal must therefore be decided on the footing that the dividend warrants were handed over to the Bank by the Glass Works on August 3, 1949, is not proved.2. The material facts which have a bearing on the point in issue are these. The year of account of the bank is the calendar year. The State of Benaras in which the Bank had its registered office merged with the Indian Union on December 1, 1949. The Glass Works declared a dividend at a General Meeting on July 25, 1949. Cheque for Rs. 69,000 issued by the Glass Works in favour of the Bank in payment of the dividend were encashed by the Bank on December 31, 1949.3. The dividend received by the Bank has been brought to tax in the assessment year 1950-51. Counsel for the Bank urged that the Bank cannot be assessed to tax in respect of dividend accruing to it at a time when the Bank was a nonresident. It is urged that by virtue of Section 14 (2) (c) of the Income-tax Act, 1922, as then in force, the income received by the Bank was not liable to be taxed. At the relevant time Section 14 (2) (c) read as follows:"(2) The tax shall not be payable by an assessee -* * * *(c) in respect of any income, profits or gains accruing or arising to him within an Indian State, unless such income, profits or gains are received or deemed to be received in or are brought into the British India in the previous year by or on behalf of the assessee, or are assessable under Section 12B or Section 42." By the Adaptation of Laws Order, 1950, the words "an Indian State" were substituted by the words "a Part B State", and the words "British India" were substituted by the "taxable territories" Section 2 (14A) - (which was also incorporated by the Adaptation of Laws Order, 1950, with effect from April 1, 1950) insofar as it is material provides:"taxable territories means -(a) * * *(b) as respects any period after the 14th day of August, 1947, and before the 26th day of January, 1950, the territories for the time being comprised in the Provinces of India, but excluding the merged territory of Cooch-Bihar.* * *Provided that the taxable territories shall be deemed to include - (a) the merged territories -(i) as respects any period after the 31st day of March, 1949 for any of the purposes of this Act, and* * * *"4. The State of Benaras after merger on December 1, 1949 with the Dominion of India formed part of the State of Uttar Pradesh and was on that account part of the taxable territories by virtue of the definition contained in Section 2 (14A) of the Indian Income-tax Act. Assuming that the dividend accrued within an Indian State, it was received by the Bank in the taxable territories on December 31, 1949, and by the express words contained in Section 14 (2) (c) of the Indian Income-tax Act, 1922, before it was omitted by the Taxation Laws (Extension to Jammu and Kashmir) Act, 1954, it was not exempt from liability to payment of tax even if the right thereto had accrued to the Bank in an Indian State.5. It was then urged that the dividend must be deemed to have been received by the Bank on July 25, 1949 - the day on which it was declared and on that date the Bank being a non-resident it could not be brought to tax. But under Section 16 (2) of the Indian Income-tax Act, 1922, the dividend income was taxable only in the year in which it was paid, credited or distributed or was deemed to be paid, credited or distributed.This Court observed in J. Dalmia v. Commissioner of Income-tax, Delhi, 53 ITR 83 = (AIR 1964 SC 1866 ) that the expression "paid" in Section 16 (2) does not contemplate actual receipt of the dividend by the member in general, dividend may be said to be paid within the meaning of Section 16 (2) when the Company discharges its liability and makes the amount of dividend unconditionally available to the member entitled thereto. It was also held that the Act does not make dividend income taxable in the year in which it becomes due: it is taxable only in the year in which it is paid, credited or distributed.The Court overruled the decision of the Bombay High Court in Commissioner of Income-tax v. Laxmidas Mulrai Khatau, 16 ITR 248 = (AIR 1948 Bom 404 ) in which it was held that when dividend is declared, liability arises on the part of the Company to make that payment to the shareholder and with regard to the shareholder when the income represented by that dividend accrues or arises to him, and that the fact that the actual payment of the income is deferred in immaterial and irrelevant.6. In the present case there is no evidence that before December 31, 1949 dividend was paid, credited or distributed to the Bank. By virtue of S. 4 (1) (a) of the Income-tax Act, 1922, the income was held properly taxable in the assessment year 1950-51.It is unnecessary therefore to consider whether even if the Bank was a non-resident on July 25, 1949, by virtue of Section 4 (1) (b) (ii) it was liable to be taxed in respect of the dividend income in the year of assessment 1950-51. | 0[ds]4. The State of Benaras after merger on December 1, 1949 with the Dominion of India formed part of the State of Uttar Pradesh and was on that account part of the taxable territories by virtue of the definition contained in Section 2 (14A) of the Indian Income-tax Act. Assuming that the dividend accrued within an Indian State, it was received by the Bank in the taxable territories on December 31, 1949, and by the express words contained in Section 14 (2) (c) of the Indian Income-tax Act, 1922, before it was omitted bythe Taxation Laws (Extension to Jammu and Kashmir) Act, 1954, it was not exempt from liability to payment of tax even if the right thereto had accrued to the Bank in an Indian State.In the present case there is no evidence that before December 31, 1949 dividend was paid, credited or distributed to the Bank. By virtue of S. 4 (1) (a) of the Income-tax Act, 1922, the income was held properly taxable in the assessment year 1950-51.It is unnecessary therefore to consider whether even if the Bank was a non-resident on July 25, 1949, by virtue of Section 4 (1) (b) (ii) it was liable to be taxed in respect of the dividend income in the year of assessmentunder Section 16 (2) of the IndianAct, 1922, the dividend income was taxable only in the year in which it was paid, credited or distributed or was deemed to be paid, credited or distributed.This Court observed in J. Dalmia v. Commissioner ofDelhi, 53 ITR 83 = (AIR 1964 SC 1866 ) that the expression "paid" in Section 16 (2) does not contemplate actual receipt of the dividend by the member in general, dividend may be said to be paid within the meaning of Section 16 (2) when the Company discharges its liability and makes the amount of dividend unconditionally available to the member entitled thereto. It was also held that the Act does not make dividend income taxable in the year in which it becomes due: it is taxable only in the year in which it is paid, credited or distributed.The Court overruled the decision of the Bombay High Court in Commissioner ofv. Laxmidas Mulrai Khatau, 16 ITR 248 = (AIR 1948 Bom 404 ) in which it was held that when dividend is declared, liability arises on the part of the Company to make that payment to the shareholder and with regard to the shareholder when the income represented by that dividend accrues or arises to him, and that the fact that the actual payment of the income is deferred in immaterial and irrelevant. | 0 | 1,141 | 500 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
Shah, Ag. C.J.1. By order dated August 23, 1968, we called for a supplementary statement on the issue whether dividend warrants were delivered by the Glass Works to the Bank on August 3 1949. The Tribunal has submitted a statement of the case that the only relevant facts proved are that the dividend was declared on July 25, 1949 and the Bank encashed the dividend warrants on December 31, 1949. The appeal must therefore be decided on the footing that the dividend warrants were handed over to the Bank by the Glass Works on August 3, 1949, is not proved.2. The material facts which have a bearing on the point in issue are these. The year of account of the bank is the calendar year. The State of Benaras in which the Bank had its registered office merged with the Indian Union on December 1, 1949. The Glass Works declared a dividend at a General Meeting on July 25, 1949. Cheque for Rs. 69,000 issued by the Glass Works in favour of the Bank in payment of the dividend were encashed by the Bank on December 31, 1949.3. The dividend received by the Bank has been brought to tax in the assessment year 1950-51. Counsel for the Bank urged that the Bank cannot be assessed to tax in respect of dividend accruing to it at a time when the Bank was a nonresident. It is urged that by virtue of Section 14 (2) (c) of the Income-tax Act, 1922, as then in force, the income received by the Bank was not liable to be taxed. At the relevant time Section 14 (2) (c) read as follows:"(2) The tax shall not be payable by an assessee -* * * *(c) in respect of any income, profits or gains accruing or arising to him within an Indian State, unless such income, profits or gains are received or deemed to be received in or are brought into the British India in the previous year by or on behalf of the assessee, or are assessable under Section 12B or Section 42." By the Adaptation of Laws Order, 1950, the words "an Indian State" were substituted by the words "a Part B State", and the words "British India" were substituted by the "taxable territories" Section 2 (14A) - (which was also incorporated by the Adaptation of Laws Order, 1950, with effect from April 1, 1950) insofar as it is material provides:"taxable territories means -(a) * * *(b) as respects any period after the 14th day of August, 1947, and before the 26th day of January, 1950, the territories for the time being comprised in the Provinces of India, but excluding the merged territory of Cooch-Bihar.* * *Provided that the taxable territories shall be deemed to include - (a) the merged territories -(i) as respects any period after the 31st day of March, 1949 for any of the purposes of this Act, and* * * *"4. The State of Benaras after merger on December 1, 1949 with the Dominion of India formed part of the State of Uttar Pradesh and was on that account part of the taxable territories by virtue of the definition contained in Section 2 (14A) of the Indian Income-tax Act. Assuming that the dividend accrued within an Indian State, it was received by the Bank in the taxable territories on December 31, 1949, and by the express words contained in Section 14 (2) (c) of the Indian Income-tax Act, 1922, before it was omitted by the Taxation Laws (Extension to Jammu and Kashmir) Act, 1954, it was not exempt from liability to payment of tax even if the right thereto had accrued to the Bank in an Indian State.5. It was then urged that the dividend must be deemed to have been received by the Bank on July 25, 1949 - the day on which it was declared and on that date the Bank being a non-resident it could not be brought to tax. But under Section 16 (2) of the Indian Income-tax Act, 1922, the dividend income was taxable only in the year in which it was paid, credited or distributed or was deemed to be paid, credited or distributed.This Court observed in J. Dalmia v. Commissioner of Income-tax, Delhi, 53 ITR 83 = (AIR 1964 SC 1866 ) that the expression "paid" in Section 16 (2) does not contemplate actual receipt of the dividend by the member in general, dividend may be said to be paid within the meaning of Section 16 (2) when the Company discharges its liability and makes the amount of dividend unconditionally available to the member entitled thereto. It was also held that the Act does not make dividend income taxable in the year in which it becomes due: it is taxable only in the year in which it is paid, credited or distributed.The Court overruled the decision of the Bombay High Court in Commissioner of Income-tax v. Laxmidas Mulrai Khatau, 16 ITR 248 = (AIR 1948 Bom 404 ) in which it was held that when dividend is declared, liability arises on the part of the Company to make that payment to the shareholder and with regard to the shareholder when the income represented by that dividend accrues or arises to him, and that the fact that the actual payment of the income is deferred in immaterial and irrelevant.6. In the present case there is no evidence that before December 31, 1949 dividend was paid, credited or distributed to the Bank. By virtue of S. 4 (1) (a) of the Income-tax Act, 1922, the income was held properly taxable in the assessment year 1950-51.It is unnecessary therefore to consider whether even if the Bank was a non-resident on July 25, 1949, by virtue of Section 4 (1) (b) (ii) it was liable to be taxed in respect of the dividend income in the year of assessment 1950-51.
### Response:
0
### Explanation:
4. The State of Benaras after merger on December 1, 1949 with the Dominion of India formed part of the State of Uttar Pradesh and was on that account part of the taxable territories by virtue of the definition contained in Section 2 (14A) of the Indian Income-tax Act. Assuming that the dividend accrued within an Indian State, it was received by the Bank in the taxable territories on December 31, 1949, and by the express words contained in Section 14 (2) (c) of the Indian Income-tax Act, 1922, before it was omitted bythe Taxation Laws (Extension to Jammu and Kashmir) Act, 1954, it was not exempt from liability to payment of tax even if the right thereto had accrued to the Bank in an Indian State.In the present case there is no evidence that before December 31, 1949 dividend was paid, credited or distributed to the Bank. By virtue of S. 4 (1) (a) of the Income-tax Act, 1922, the income was held properly taxable in the assessment year 1950-51.It is unnecessary therefore to consider whether even if the Bank was a non-resident on July 25, 1949, by virtue of Section 4 (1) (b) (ii) it was liable to be taxed in respect of the dividend income in the year of assessmentunder Section 16 (2) of the IndianAct, 1922, the dividend income was taxable only in the year in which it was paid, credited or distributed or was deemed to be paid, credited or distributed.This Court observed in J. Dalmia v. Commissioner ofDelhi, 53 ITR 83 = (AIR 1964 SC 1866 ) that the expression "paid" in Section 16 (2) does not contemplate actual receipt of the dividend by the member in general, dividend may be said to be paid within the meaning of Section 16 (2) when the Company discharges its liability and makes the amount of dividend unconditionally available to the member entitled thereto. It was also held that the Act does not make dividend income taxable in the year in which it becomes due: it is taxable only in the year in which it is paid, credited or distributed.The Court overruled the decision of the Bombay High Court in Commissioner ofv. Laxmidas Mulrai Khatau, 16 ITR 248 = (AIR 1948 Bom 404 ) in which it was held that when dividend is declared, liability arises on the part of the Company to make that payment to the shareholder and with regard to the shareholder when the income represented by that dividend accrues or arises to him, and that the fact that the actual payment of the income is deferred in immaterial and irrelevant.
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Rakesh Birani Vs. Prem Narain Sehgal and Ors | after meeting the cost of removing encumbrances and contingencies there is any surplus available out of the money deposited by the purchaser such surplus shall be paid to the purchaser within fifteen days from the date of finalisation of the sale.) (8) On such deposit of money for discharge of the encumbrances, the authorised officer shall issue or cause the purchaser to issue notices to the persons interested in or entitled to the money deposited with him and take steps to make the payment accordingly. (9) The authorised officer shall deliver the property to the purchase fee from encumbrances known to the secured creditor on deposit of money as specified in Sub-rule (7) above. (10) The certificate of sale issued Under Sub-rule (6) shall specifically mention that whether the purchaser has purchased the immovable secured asset free from any encumbrances known to the secured creditor or not. 5. The submission raised by learned Counsel appearing on behalf of the Appellant was that Rule 9(4) of the 2002 Rules provided that the amount has to be deposited only after confirmation. Rule 9(2) also contemplates confirmation of the bid. Learned Counsel has also taken us through Rule 9(5) so as to contend that in default of the payment within the period mentioned in Sub-rule (4), the deposit made hall be forfeited. The forfeiture is only to follow as consequence of non-deposit of 75 percent of amount after confirmation of sale. Learned Counsel has also relied upon the provisions of Rule 9(6) to submit that after confirmation of sale, in case, terms of sale have been complied with only then sale certificate is issued. In this case, sale certificate has been issued by the owner in favour of the auction purchaser. Thus, the High Court has erred in law in interpreting the Rule 9 of the rules of 2002 to mean that date of the auction is also the date of its confirmation. 6. On the other hand, learned Counsel appearing on behalf of the borrower-Respondent No. 1 contends that it is apparent from Rule 9(2) that there is confirmation of sale as soon as highest bid is accepted by the authorised officer, within fifteen days, the deposit of 75% of the amount is to be made, failing which the only course is the forfeiture of the remaining 25% of the amount that has been deposited and the property has to be resold. 7. In order to comprehend the rival submissions, it is necessary to ponder as to intendment of Rule 9 of the 2002 Rules which deals with the time of sale, issues of sale certificate and delivery of possession, etc. Public notice of sale is to be published in the newspaper and only after thirty days thereafter, the sale of immovable properly can take place. Under Rule 9(2) of the 2002 Rules, the sale is required to be confirmed in favour of the purchaser who has offered the highest sale price to the authorised officer and shall be subject to confirmation by the secured creditor. The proviso makes it clear that sale under the said Rule would be confirmed if the amount offered and the whole price is not less than the reserved price as specified in Rule 9(5). It is apparent that Rule 9(1) does not deal with the confirmation by the authorised officer. It only provides confirmation by the secured creditor. Rule 9(3) makes it clear that on every sale of immovable property, the purchaser on the same day or not later than next working day, has to make a deposit of twenty-five percent of the amount of the sale price, which is inclusive of earnest money deposited if any. Rule 9(4) makes it clear that balance amount of the purchase price payable shall be paid by the purchaser to the authorized officer on or before the fifteenth day of confirmation of sale of the immovable property or such extended period as may be agreed upon in writing between the purchaser and the secured creditor. Thus, Rule 9(2) makes it clear that after confirmation by the secured creditor the amount has to be deposited. Rule 9(3) also makes it clear that period of fifteen days has to be computed from the date of confirmation. In this case, confirmation has been made and communicated on 27th February 2013 and within fifteen days thereof i.e. on 13th March 2018, the amount of twenty-five percent had been deposited. Thereafter, sale certificate has been issued Under Rule 9(6). Rule 9(5) also makes it clear that in default of payment within the period mentioned in Sub-rule 9(4), the deposit shall be forfeited. There cannot be any forfeiture of the amount of 25 percent in deposit until and unless the sale is confirmed by the secured creditor and there is a default of payment of 75 percent of the amount. The interpretation made by the High Court thus cannot be accepted. 8. If we read the provisions otherwise then we find even before the confirmation of sale within fifteen days, the amount would be forfeited by the authorised officer who may decide not to confirm the sale that would be a result not contemplated in Rule 9(2), 9(4) and 9(5) which fortify our conclusion that it is only after the confirmation is made Under Rule 9(4) that amount has to be deposited and on failure to deposit the amount, twenty-five percent amount has to be forfeited and property has to be resold. The provisions of Rule 9(6) also fortifies our conclusion, inasmuch as it is the expression used that on confirmation of sale by the secured creditor and if the term of payment has been complied with sale certificate is issued otherwise the forfeiture takes place, this compliance has to be only after the confirmation of sale and not before it. Thus, various provisions of Rule 9 makes it clear that interpretation made by Debts Recovery Tribunal and Debts Recovery Appellate Tribunal and as affirmed by the High Court cannot be said to be correct. | 1[ds]The aforesaid dates are not in dispute. The decision depends upon the interpretation of Rule 9 of Security Interest (Enforcement) Rules, 2002 (for short the 2002 Rules).7. In order to comprehend the rival submissions, it is necessary to ponder as to intendment of Rule 9 of the 2002 Rules which deals with the time of sale, issues of sale certificate and delivery of possession, etc. Public notice of sale is to be published in the newspaper and only after thirty days thereafter, the sale of immovable properly can take place. Under Rule 9(2) of the 2002 Rules, the sale is required to be confirmed in favour of the purchaser who has offered the highest sale price to the authorised officer and shall be subject to confirmation by the secured creditor. The proviso makes it clear that sale under the said Rule would be confirmed if the amount offered and the whole price is not less than the reserved price as specified in Rule 9(5). It is apparent that Rule 9(1) does not deal with the confirmation by the authorised officer. It only provides confirmation by the secured creditor. Rule 9(3) makes it clear that on every sale of immovable property, the purchaser on the same day or not later than next working day, has to make a deposit of twenty-five percent of the amount of the sale price, which is inclusive of earnest money deposited if any. Rule 9(4) makes it clear that balance amount of the purchase price payable shall be paid by the purchaser to the authorized officer on or before the fifteenth day of confirmation of sale of the immovable property or such extended period as may be agreed upon in writing between the purchaser and the secured creditor. Thus, Rule 9(2) makes it clear that after confirmation by the secured creditor the amount has to be deposited. Rule 9(3) also makes it clear that period of fifteen days has to be computed from the date of confirmation. In this case, confirmation has been made and communicated on 27th February 2013 and within fifteen days thereof i.e. on 13th March 2018, the amount of twenty-five percent had been deposited. Thereafter, sale certificate has been issued Under Rule 9(6). Rule 9(5) also makes it clear that in default of payment within the period mentioned in Sub-rule 9(4), the deposit shall be forfeited. There cannot be any forfeiture of the amount of 25 percent in deposit until and unless the sale is confirmed by the secured creditor and there is a default of payment of 75 percent of the amount. The interpretation made by the High Court thus cannot be accepted.8. If we read the provisions otherwise then we find even before the confirmation of sale within fifteen days, the amount would be forfeited by the authorised officer who may decide not to confirm the sale that would be a result not contemplated in Rule 9(2), 9(4) and 9(5) which fortify our conclusion that it is only after the confirmation is made Under Rule 9(4) that amount has to be deposited and on failure to deposit the amount, twenty-five percent amount has to be forfeited and property has to be resold. The provisions of Rule 9(6) also fortifies our conclusion, inasmuch as it is the expression used that on confirmation of sale by the secured creditor and if the term of payment has been complied with sale certificate is issued otherwise the forfeiture takes place, this compliance has to be only after the confirmation of sale and not before it. Thus, various provisions of Rule 9 makes it clear that interpretation made by Debts Recovery Tribunal and Debts Recovery Appellate Tribunal and as affirmed by the High Court cannot be said to be correct. | 1 | 2,147 | 723 | ### 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:
after meeting the cost of removing encumbrances and contingencies there is any surplus available out of the money deposited by the purchaser such surplus shall be paid to the purchaser within fifteen days from the date of finalisation of the sale.) (8) On such deposit of money for discharge of the encumbrances, the authorised officer shall issue or cause the purchaser to issue notices to the persons interested in or entitled to the money deposited with him and take steps to make the payment accordingly. (9) The authorised officer shall deliver the property to the purchase fee from encumbrances known to the secured creditor on deposit of money as specified in Sub-rule (7) above. (10) The certificate of sale issued Under Sub-rule (6) shall specifically mention that whether the purchaser has purchased the immovable secured asset free from any encumbrances known to the secured creditor or not. 5. The submission raised by learned Counsel appearing on behalf of the Appellant was that Rule 9(4) of the 2002 Rules provided that the amount has to be deposited only after confirmation. Rule 9(2) also contemplates confirmation of the bid. Learned Counsel has also taken us through Rule 9(5) so as to contend that in default of the payment within the period mentioned in Sub-rule (4), the deposit made hall be forfeited. The forfeiture is only to follow as consequence of non-deposit of 75 percent of amount after confirmation of sale. Learned Counsel has also relied upon the provisions of Rule 9(6) to submit that after confirmation of sale, in case, terms of sale have been complied with only then sale certificate is issued. In this case, sale certificate has been issued by the owner in favour of the auction purchaser. Thus, the High Court has erred in law in interpreting the Rule 9 of the rules of 2002 to mean that date of the auction is also the date of its confirmation. 6. On the other hand, learned Counsel appearing on behalf of the borrower-Respondent No. 1 contends that it is apparent from Rule 9(2) that there is confirmation of sale as soon as highest bid is accepted by the authorised officer, within fifteen days, the deposit of 75% of the amount is to be made, failing which the only course is the forfeiture of the remaining 25% of the amount that has been deposited and the property has to be resold. 7. In order to comprehend the rival submissions, it is necessary to ponder as to intendment of Rule 9 of the 2002 Rules which deals with the time of sale, issues of sale certificate and delivery of possession, etc. Public notice of sale is to be published in the newspaper and only after thirty days thereafter, the sale of immovable properly can take place. Under Rule 9(2) of the 2002 Rules, the sale is required to be confirmed in favour of the purchaser who has offered the highest sale price to the authorised officer and shall be subject to confirmation by the secured creditor. The proviso makes it clear that sale under the said Rule would be confirmed if the amount offered and the whole price is not less than the reserved price as specified in Rule 9(5). It is apparent that Rule 9(1) does not deal with the confirmation by the authorised officer. It only provides confirmation by the secured creditor. Rule 9(3) makes it clear that on every sale of immovable property, the purchaser on the same day or not later than next working day, has to make a deposit of twenty-five percent of the amount of the sale price, which is inclusive of earnest money deposited if any. Rule 9(4) makes it clear that balance amount of the purchase price payable shall be paid by the purchaser to the authorized officer on or before the fifteenth day of confirmation of sale of the immovable property or such extended period as may be agreed upon in writing between the purchaser and the secured creditor. Thus, Rule 9(2) makes it clear that after confirmation by the secured creditor the amount has to be deposited. Rule 9(3) also makes it clear that period of fifteen days has to be computed from the date of confirmation. In this case, confirmation has been made and communicated on 27th February 2013 and within fifteen days thereof i.e. on 13th March 2018, the amount of twenty-five percent had been deposited. Thereafter, sale certificate has been issued Under Rule 9(6). Rule 9(5) also makes it clear that in default of payment within the period mentioned in Sub-rule 9(4), the deposit shall be forfeited. There cannot be any forfeiture of the amount of 25 percent in deposit until and unless the sale is confirmed by the secured creditor and there is a default of payment of 75 percent of the amount. The interpretation made by the High Court thus cannot be accepted. 8. If we read the provisions otherwise then we find even before the confirmation of sale within fifteen days, the amount would be forfeited by the authorised officer who may decide not to confirm the sale that would be a result not contemplated in Rule 9(2), 9(4) and 9(5) which fortify our conclusion that it is only after the confirmation is made Under Rule 9(4) that amount has to be deposited and on failure to deposit the amount, twenty-five percent amount has to be forfeited and property has to be resold. The provisions of Rule 9(6) also fortifies our conclusion, inasmuch as it is the expression used that on confirmation of sale by the secured creditor and if the term of payment has been complied with sale certificate is issued otherwise the forfeiture takes place, this compliance has to be only after the confirmation of sale and not before it. Thus, various provisions of Rule 9 makes it clear that interpretation made by Debts Recovery Tribunal and Debts Recovery Appellate Tribunal and as affirmed by the High Court cannot be said to be correct.
### Response:
1
### Explanation:
The aforesaid dates are not in dispute. The decision depends upon the interpretation of Rule 9 of Security Interest (Enforcement) Rules, 2002 (for short the 2002 Rules).7. In order to comprehend the rival submissions, it is necessary to ponder as to intendment of Rule 9 of the 2002 Rules which deals with the time of sale, issues of sale certificate and delivery of possession, etc. Public notice of sale is to be published in the newspaper and only after thirty days thereafter, the sale of immovable properly can take place. Under Rule 9(2) of the 2002 Rules, the sale is required to be confirmed in favour of the purchaser who has offered the highest sale price to the authorised officer and shall be subject to confirmation by the secured creditor. The proviso makes it clear that sale under the said Rule would be confirmed if the amount offered and the whole price is not less than the reserved price as specified in Rule 9(5). It is apparent that Rule 9(1) does not deal with the confirmation by the authorised officer. It only provides confirmation by the secured creditor. Rule 9(3) makes it clear that on every sale of immovable property, the purchaser on the same day or not later than next working day, has to make a deposit of twenty-five percent of the amount of the sale price, which is inclusive of earnest money deposited if any. Rule 9(4) makes it clear that balance amount of the purchase price payable shall be paid by the purchaser to the authorized officer on or before the fifteenth day of confirmation of sale of the immovable property or such extended period as may be agreed upon in writing between the purchaser and the secured creditor. Thus, Rule 9(2) makes it clear that after confirmation by the secured creditor the amount has to be deposited. Rule 9(3) also makes it clear that period of fifteen days has to be computed from the date of confirmation. In this case, confirmation has been made and communicated on 27th February 2013 and within fifteen days thereof i.e. on 13th March 2018, the amount of twenty-five percent had been deposited. Thereafter, sale certificate has been issued Under Rule 9(6). Rule 9(5) also makes it clear that in default of payment within the period mentioned in Sub-rule 9(4), the deposit shall be forfeited. There cannot be any forfeiture of the amount of 25 percent in deposit until and unless the sale is confirmed by the secured creditor and there is a default of payment of 75 percent of the amount. The interpretation made by the High Court thus cannot be accepted.8. If we read the provisions otherwise then we find even before the confirmation of sale within fifteen days, the amount would be forfeited by the authorised officer who may decide not to confirm the sale that would be a result not contemplated in Rule 9(2), 9(4) and 9(5) which fortify our conclusion that it is only after the confirmation is made Under Rule 9(4) that amount has to be deposited and on failure to deposit the amount, twenty-five percent amount has to be forfeited and property has to be resold. The provisions of Rule 9(6) also fortifies our conclusion, inasmuch as it is the expression used that on confirmation of sale by the secured creditor and if the term of payment has been complied with sale certificate is issued otherwise the forfeiture takes place, this compliance has to be only after the confirmation of sale and not before it. Thus, various provisions of Rule 9 makes it clear that interpretation made by Debts Recovery Tribunal and Debts Recovery Appellate Tribunal and as affirmed by the High Court cannot be said to be correct.
|
Ashok Lanka And Another Vs. S Rishi Dixit And Others | a statutory authority while exercising its statutory functions may do away with or dilute the statutory mandates. 77. In G.J. Fernandez (supra), again this Court was interpreting the conditions of NIT and not the statutory rules. It is only in the fact situation obtaining therein it was observed that the way in which the tender documents issued by it had been understood and implemented by the KPC had been explained in its note, which sets out the general procedure which the KPC was following in regard to NITs issued by it from time to time. The said decision has no application in a case requiring compliance of statutory requirements. 78. In Dr. Mahachandra Prasad Singh (supra), this Court was concerned with interpretation of an election of the Bihar Legislative Council Members (Disqualification on Ground of Defection) Rules, 1994. While considering the submission that an affidavit which is required to be filed in terms of sub-rule (6) of Rule 6 of the Rules, the Court held that the provisions thereof are not so mandatory in nature that even a slight infraction of the Rules would render the entire proceedings initiated by the Chairman invalid or without jurisdiction. It was in that sense the provisions were held to be directory in nature. We may notice that in terms of the Civil Procedure (Amendment) Act, 2002, a plaint must be verified by an affidavit, which is mandatory in nature. 79. In Nain Sukh Das (supra) this Court was concerned with a case where the election of the municipal member was sought to be set aside on the ground of alleged violation of Article 15(1) of the Constitution. In that case it was held that the petitioners therein never asserted their rights by taking appropriate proceedings to get the bar under Article 15(1) removed and in that situation, this the Court did not exercise its jurisdiction under Article 32 of the Constitution stating: ".... It may be, as we have already remarked, that the petitioners could claim such relief as rate-payers of the Municipality in appropriately framed proceedings, but there is not question of enforcing petitioners fundamental right under article 15(1) or article 14 in such claim. There is still less ground for seeking relief on that basis against respondent 3 who is only a nominated member..." 80. The said decision has no application in the instant case. 81. In K.N. Guruswamy (supra), the appellant therein sought to enforce his right in obtaining a contract to which he was entitled to but no relief was granted as the excise year had already expired. Issuance of such a writ was found to be resulting in futility. Such is not the case herein. 82. In Rajendra Singh (supra), this Court held that the jurisdiction of the High Court under Article 226 is not intended to facilitate avoidance of obligations voluntarily incurred, though the licensees are not precluded from seeking to enforce the statutory provisions governing the contract. 83. The writ petitioners herein filed a writ at a pre-selection stage and furthermore have not sought for enforcement of the contract. 84. In Balco Employees Union (supra), this Court was concerned with an economic policy of the State which is not the case herein. 85. Furthermore, it is now beyond any cavil that economic policies of the State although ordinarily would not be interfered with, but the same is not beyond the pale of judicial review. (See Cellular Operators Association of India and others vs. Union of India & others (2003) 3 SCC 186 ). 86. It is also not a case where no relief can be granted to the writ petitioners, as was done in the case of K.N. Guruswamy (supra), having regard to the fact situation obtaining therein. SHOULD WE ISSUE GUIDELINES: 87. Before parting, we make it clear that in these appeals we did not go into the larger question raised by Dr. Dhawan that the State must insist for a solvency certificate keeping in view the similar provisions contained in the statutes enacted by the others States, nor this Court, as at present advised, is inclined to issue the requisite guidelines therefor. 88. There cannot, however, be any doubt or dispute that having regard to the several decisions of this Court, e.g. The State of Bombay vs. R.M.D. Chamarbaugwala (1957) SCR 874 ), M/s. Fatehchand Himmatlal and others etc. vs. State of Maharashtra etc. (1977) 2 SCC 670 ), Khoday Distilleries Ltd. and others vs. State of Karnataka and others (1995) 1 SCC 574 ), B.R. Enterprises etc. vs. State of U.P. and others etc. (1999) 9 SCC 700 ), State of A.P. and others vs. Mcdowell & Company and others (1996) 3 SCC 709 ), State of Punjab and another vs. Devans Modern Breweries Ltd. and another (2004) 11 SCC 26 ), trade in liquor is considered to be res extra commercium although tobacco produce has not been declared so. (See Godawat Pan Masala Products I.P. Ltd. and another vs. Union of India and others (2004) 7 SCC 68 ). The State while exercising its power of parting with its exclusive privilege to deal in liquor has a positive obligation that any activity therein strictly conforms to the public interest and ensures public health, welfare and safety. Strict adherence to the requirement to comply with the statutory provisions must be considered from that angle. CONCLUSION: 89. The question, however, which now falls for consideration is as to what order should be passed in the peculiar facts and circumstances of this case. 90. In this case the mode of selection is in question. All the parties participated in the selection process. Some of them became successful. They had not complied with the statutory requirements not because they were not willing to do so but because the statutory authorities were not correctly advised. The conduct of the statutory authorities although must be deprecated but that by itself, in our opinion, may not come in the way of the successful candidates in getting the just relief. | 1[ds]When a public interest litigation was entertained the individual conduct of the writ petitioners would take a backseat. There cannot be any doubt whatsoever that in a given case a party may waive his legal right. In an appropriate case, the doctrine of acquiescence or acceptance sub silentio may also be invoked.the High Court, in the instant case, has gone into the question with a wider perspective. This Court is not only required to construe the provisions of the statute but also to take into consideration the subsequent events which took place vis-a-vis the action on the part of the State after passing of the interim order. The issue as regard application of acquiescence or waiver, therefore, in our opinion has become irrelevant.Mr. Desai is also not correct in his submission that clause 22 of the said circular contemplates a future amendment in the rules. Even if the same contemplates a future amendment, the same would not sub-serve the statutory requirements inasmuch as the Commissioner of Excise was not supposed to know as to how the existing rules would be amended and whether the same would be applied prospectively or retrospectively. The Court cannot draw a presumption that the Commissioner of Excise could proceed on a pre-supposition that his action in issuing a circular contrary to rules would stand ratified by retrospective operation of the rules. A statutory authority, it is trite, must exercise his jurisdiction with the four-corners of the statute and cannot deviate or depart therefrom.We have noticed hereinbefore that despite the fact that the order of injunction was issued by the High Court while modifying the interim order on 7.3.2005, the State was asked not to publish the selection list. The contentions raised in the petitions for grant of special leave to appeal, however, leave no manner of doubt that such selection list whether in violation of the order of the High Court or otherwise had been published. If the said rules are considered to be retrospective, admittedly, the affidavits had not been filed on the next day of such selection and, thus, the rules are not capable of being implemented.We have noticed hereinbefore that even in the notice, the selected candidates had not been asked to submit affidavits in the prescribed format. It is not expected of the statutory functionaries to ask the selected candidates to comply with the requirements orally. It is beyond our comprehension as to why such a post haste action was taken by the State.Although we do not intend to put a seal of finality on the said issue, we are constrained to observe that having regard to the actions of the statutory functionaries, the entire exercise of the scrutiny as regard ascertainment of the eligibility of the candidates vis-a-vis selection process is required to be undertaken again by the Selection Committee. Furthermore, this Court is entitled to take into consideration subsequent events so as to do the complete justice to the parties.When this Court passed an interim order it was expected that the statutory requirements therefore, shall be complied with. Even if Rule 9 is held to be directory, substantial compliance thereof was necessary. A mandatory statute requires strict compliance whereas a directory statute requires substantial compliance. Even if a statute if a statute is directory, the State cannot say that the requirements contained therein do not envisage compliance thereof. The authorities of the State cannot raise a plea that they would not even notice the inherent defects contained in the application. They could not proceed on a presumption, for which there is no legal sanction, that contents of the affidavit would be correct. No summary report required to be prepared by the Member Secretary for its placement before the Committee appears to have not been prepared. The Rules postulate that each and every application must be examined carefully. Mere fact that a large number of applications have been filed, as a result whereof the State had been able to obtain crores and crores of rupees by itself did not entitle the State to dispense with the statutory requirements. The application fees were not meant to be utilized for the purpose of earning revenue but to meet the administrative charges required therefore. Application fees cannot be equated with tax.Before parting, we make it clear that in these appeals we did not go into the larger question raised by Dr. Dhawan that the State must insist for a solvency certificate keeping in view the similar provisions contained in the statutes enacted by the others States, nor this Court, as at present advised, is inclined to issue the requisite guidelines therefor.In this case the mode of selection is in question. All the parties participated in the selection process. Some of them became successful. They had not complied with the statutory requirements not because they were not willing to do so but because the statutory authorities were not correctly advised. The conduct of the statutory authorities although must be deprecated but that by itself, in our opinion, may not come in the way of the successful candidates in getting the just relief. | 1 | 12,354 | 917 | ### 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:
a statutory authority while exercising its statutory functions may do away with or dilute the statutory mandates. 77. In G.J. Fernandez (supra), again this Court was interpreting the conditions of NIT and not the statutory rules. It is only in the fact situation obtaining therein it was observed that the way in which the tender documents issued by it had been understood and implemented by the KPC had been explained in its note, which sets out the general procedure which the KPC was following in regard to NITs issued by it from time to time. The said decision has no application in a case requiring compliance of statutory requirements. 78. In Dr. Mahachandra Prasad Singh (supra), this Court was concerned with interpretation of an election of the Bihar Legislative Council Members (Disqualification on Ground of Defection) Rules, 1994. While considering the submission that an affidavit which is required to be filed in terms of sub-rule (6) of Rule 6 of the Rules, the Court held that the provisions thereof are not so mandatory in nature that even a slight infraction of the Rules would render the entire proceedings initiated by the Chairman invalid or without jurisdiction. It was in that sense the provisions were held to be directory in nature. We may notice that in terms of the Civil Procedure (Amendment) Act, 2002, a plaint must be verified by an affidavit, which is mandatory in nature. 79. In Nain Sukh Das (supra) this Court was concerned with a case where the election of the municipal member was sought to be set aside on the ground of alleged violation of Article 15(1) of the Constitution. In that case it was held that the petitioners therein never asserted their rights by taking appropriate proceedings to get the bar under Article 15(1) removed and in that situation, this the Court did not exercise its jurisdiction under Article 32 of the Constitution stating: ".... It may be, as we have already remarked, that the petitioners could claim such relief as rate-payers of the Municipality in appropriately framed proceedings, but there is not question of enforcing petitioners fundamental right under article 15(1) or article 14 in such claim. There is still less ground for seeking relief on that basis against respondent 3 who is only a nominated member..." 80. The said decision has no application in the instant case. 81. In K.N. Guruswamy (supra), the appellant therein sought to enforce his right in obtaining a contract to which he was entitled to but no relief was granted as the excise year had already expired. Issuance of such a writ was found to be resulting in futility. Such is not the case herein. 82. In Rajendra Singh (supra), this Court held that the jurisdiction of the High Court under Article 226 is not intended to facilitate avoidance of obligations voluntarily incurred, though the licensees are not precluded from seeking to enforce the statutory provisions governing the contract. 83. The writ petitioners herein filed a writ at a pre-selection stage and furthermore have not sought for enforcement of the contract. 84. In Balco Employees Union (supra), this Court was concerned with an economic policy of the State which is not the case herein. 85. Furthermore, it is now beyond any cavil that economic policies of the State although ordinarily would not be interfered with, but the same is not beyond the pale of judicial review. (See Cellular Operators Association of India and others vs. Union of India & others (2003) 3 SCC 186 ). 86. It is also not a case where no relief can be granted to the writ petitioners, as was done in the case of K.N. Guruswamy (supra), having regard to the fact situation obtaining therein. SHOULD WE ISSUE GUIDELINES: 87. Before parting, we make it clear that in these appeals we did not go into the larger question raised by Dr. Dhawan that the State must insist for a solvency certificate keeping in view the similar provisions contained in the statutes enacted by the others States, nor this Court, as at present advised, is inclined to issue the requisite guidelines therefor. 88. There cannot, however, be any doubt or dispute that having regard to the several decisions of this Court, e.g. The State of Bombay vs. R.M.D. Chamarbaugwala (1957) SCR 874 ), M/s. Fatehchand Himmatlal and others etc. vs. State of Maharashtra etc. (1977) 2 SCC 670 ), Khoday Distilleries Ltd. and others vs. State of Karnataka and others (1995) 1 SCC 574 ), B.R. Enterprises etc. vs. State of U.P. and others etc. (1999) 9 SCC 700 ), State of A.P. and others vs. Mcdowell & Company and others (1996) 3 SCC 709 ), State of Punjab and another vs. Devans Modern Breweries Ltd. and another (2004) 11 SCC 26 ), trade in liquor is considered to be res extra commercium although tobacco produce has not been declared so. (See Godawat Pan Masala Products I.P. Ltd. and another vs. Union of India and others (2004) 7 SCC 68 ). The State while exercising its power of parting with its exclusive privilege to deal in liquor has a positive obligation that any activity therein strictly conforms to the public interest and ensures public health, welfare and safety. Strict adherence to the requirement to comply with the statutory provisions must be considered from that angle. CONCLUSION: 89. The question, however, which now falls for consideration is as to what order should be passed in the peculiar facts and circumstances of this case. 90. In this case the mode of selection is in question. All the parties participated in the selection process. Some of them became successful. They had not complied with the statutory requirements not because they were not willing to do so but because the statutory authorities were not correctly advised. The conduct of the statutory authorities although must be deprecated but that by itself, in our opinion, may not come in the way of the successful candidates in getting the just relief.
### Response:
1
### Explanation:
When a public interest litigation was entertained the individual conduct of the writ petitioners would take a backseat. There cannot be any doubt whatsoever that in a given case a party may waive his legal right. In an appropriate case, the doctrine of acquiescence or acceptance sub silentio may also be invoked.the High Court, in the instant case, has gone into the question with a wider perspective. This Court is not only required to construe the provisions of the statute but also to take into consideration the subsequent events which took place vis-a-vis the action on the part of the State after passing of the interim order. The issue as regard application of acquiescence or waiver, therefore, in our opinion has become irrelevant.Mr. Desai is also not correct in his submission that clause 22 of the said circular contemplates a future amendment in the rules. Even if the same contemplates a future amendment, the same would not sub-serve the statutory requirements inasmuch as the Commissioner of Excise was not supposed to know as to how the existing rules would be amended and whether the same would be applied prospectively or retrospectively. The Court cannot draw a presumption that the Commissioner of Excise could proceed on a pre-supposition that his action in issuing a circular contrary to rules would stand ratified by retrospective operation of the rules. A statutory authority, it is trite, must exercise his jurisdiction with the four-corners of the statute and cannot deviate or depart therefrom.We have noticed hereinbefore that despite the fact that the order of injunction was issued by the High Court while modifying the interim order on 7.3.2005, the State was asked not to publish the selection list. The contentions raised in the petitions for grant of special leave to appeal, however, leave no manner of doubt that such selection list whether in violation of the order of the High Court or otherwise had been published. If the said rules are considered to be retrospective, admittedly, the affidavits had not been filed on the next day of such selection and, thus, the rules are not capable of being implemented.We have noticed hereinbefore that even in the notice, the selected candidates had not been asked to submit affidavits in the prescribed format. It is not expected of the statutory functionaries to ask the selected candidates to comply with the requirements orally. It is beyond our comprehension as to why such a post haste action was taken by the State.Although we do not intend to put a seal of finality on the said issue, we are constrained to observe that having regard to the actions of the statutory functionaries, the entire exercise of the scrutiny as regard ascertainment of the eligibility of the candidates vis-a-vis selection process is required to be undertaken again by the Selection Committee. Furthermore, this Court is entitled to take into consideration subsequent events so as to do the complete justice to the parties.When this Court passed an interim order it was expected that the statutory requirements therefore, shall be complied with. Even if Rule 9 is held to be directory, substantial compliance thereof was necessary. A mandatory statute requires strict compliance whereas a directory statute requires substantial compliance. Even if a statute if a statute is directory, the State cannot say that the requirements contained therein do not envisage compliance thereof. The authorities of the State cannot raise a plea that they would not even notice the inherent defects contained in the application. They could not proceed on a presumption, for which there is no legal sanction, that contents of the affidavit would be correct. No summary report required to be prepared by the Member Secretary for its placement before the Committee appears to have not been prepared. The Rules postulate that each and every application must be examined carefully. Mere fact that a large number of applications have been filed, as a result whereof the State had been able to obtain crores and crores of rupees by itself did not entitle the State to dispense with the statutory requirements. The application fees were not meant to be utilized for the purpose of earning revenue but to meet the administrative charges required therefore. Application fees cannot be equated with tax.Before parting, we make it clear that in these appeals we did not go into the larger question raised by Dr. Dhawan that the State must insist for a solvency certificate keeping in view the similar provisions contained in the statutes enacted by the others States, nor this Court, as at present advised, is inclined to issue the requisite guidelines therefor.In this case the mode of selection is in question. All the parties participated in the selection process. Some of them became successful. They had not complied with the statutory requirements not because they were not willing to do so but because the statutory authorities were not correctly advised. The conduct of the statutory authorities although must be deprecated but that by itself, in our opinion, may not come in the way of the successful candidates in getting the just relief.
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Shri Bileshwar Khand Udyog Khedut Sahakari Mandali Limited, Kodinar Vs. Khand Udyog Kamdar Mandal | Pathak, J.1. This appeal by special leave is directed against an order of the High Court of Gujarat dismissing in limine the appellants writ petition challenging an industrial award.2. The appellant is a cooperative society, whose members include cultivators of agricultural produce. It operates a sugar factory and its labour force includes seasonal workers. On April 10, 1973, the Khand Udyog Kamdar Mandal served notice under Section42(2) of the Bombay Industrial Relations Act, 1946 demanding that 124 seasonal workers should be given permanent status. Conciliation proceedings were taken and having failed, the dispute was referred to the Industrial Court, Gujarat. On July 29, 1977 the Industrial Court made an award directing the appellant to treat the 124 workers as permanent employees, the permanent status being vested in them with effect from the year 1974-75. The appellant filed a writ petition before the High Court of Gujarat, and the writ petition was rejected in limine.3. In this appeal, the main contention is that having regard to the questions which arose in the case the High Court erred in dismissing the writ petition in limine. It is pointed out that in making its award the Industrial Court adopted the standard that a worker employed for 240 days or more in the year was entitled to the status of a permanent worker but nowhere did the Industrial Court consider whether for acquiring that status it was sufficient that the worker was employed for such period in one year alone, as for example in the present case in 1972-73, or continued to be so employed in successive years. The Industrial Court specifically referred to the respective periods of employment in subsequent years, but failed to notice that in each of those years the period fell far short of 240 days.4. The Industrial Court had also observed in its award that most of the 124 workers had been employed all the year round in the sugar factorys maintenance department, and said that this had not been disputed by the appellant. It is pointed out that in its writ petition, a copy of which is before us, this assumption in the award was specifically challenged and the High Court should have examined whether the basis for the Industrial Courts finding was warranted.5. We have heard learned counsel for the parties on these contentions, and we are of opinion, that the appellant is right. This was not a case deserving "in limine" dismissal in the High Court. The High Court should have called upon the respondent to present its case, and then disposed of the matter on its merits. | 1[ds]3. In this appeal, the main contention is that having regard to the questions which arose in the case the High Court erred in dismissing the writ petition in limine. It is pointed out that in making its award the Industrial Court adopted the standard that a worker employed for 240 days or more in the year was entitled to the status of a permanent worker but nowhere did the Industrial Court consider whether for acquiring that status it was sufficient that the worker was employed for such period in one year alone, as for example in the present case inor continued to be so employed in successive years. The Industrial Court specifically referred to the respective periods of employment in subsequent years, but failed to notice that in each of those years the period fell far short of 240 days.4. The Industrial Court had also observed in its award that most of the 124 workers had been employed all the year round in the sugar factorys maintenance department, and said that this had not been disputed by the appellant. It is pointed out that in its writ petition, a copy of which is before us, this assumption in the award was specifically challenged and the High Court should have examined whether the basis for the Industrial Courts finding was warranted.5. We have heard learned counsel for the parties on these contentions, and we are of opinion, that the appellant is right. This was not a case deserving "in limine" dismissal in the High Court. The High Court should have called upon the respondent to present its case, and then disposed of the matter on its merits. | 1 | 473 | 301 | ### 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:
Pathak, J.1. This appeal by special leave is directed against an order of the High Court of Gujarat dismissing in limine the appellants writ petition challenging an industrial award.2. The appellant is a cooperative society, whose members include cultivators of agricultural produce. It operates a sugar factory and its labour force includes seasonal workers. On April 10, 1973, the Khand Udyog Kamdar Mandal served notice under Section42(2) of the Bombay Industrial Relations Act, 1946 demanding that 124 seasonal workers should be given permanent status. Conciliation proceedings were taken and having failed, the dispute was referred to the Industrial Court, Gujarat. On July 29, 1977 the Industrial Court made an award directing the appellant to treat the 124 workers as permanent employees, the permanent status being vested in them with effect from the year 1974-75. The appellant filed a writ petition before the High Court of Gujarat, and the writ petition was rejected in limine.3. In this appeal, the main contention is that having regard to the questions which arose in the case the High Court erred in dismissing the writ petition in limine. It is pointed out that in making its award the Industrial Court adopted the standard that a worker employed for 240 days or more in the year was entitled to the status of a permanent worker but nowhere did the Industrial Court consider whether for acquiring that status it was sufficient that the worker was employed for such period in one year alone, as for example in the present case in 1972-73, or continued to be so employed in successive years. The Industrial Court specifically referred to the respective periods of employment in subsequent years, but failed to notice that in each of those years the period fell far short of 240 days.4. The Industrial Court had also observed in its award that most of the 124 workers had been employed all the year round in the sugar factorys maintenance department, and said that this had not been disputed by the appellant. It is pointed out that in its writ petition, a copy of which is before us, this assumption in the award was specifically challenged and the High Court should have examined whether the basis for the Industrial Courts finding was warranted.5. We have heard learned counsel for the parties on these contentions, and we are of opinion, that the appellant is right. This was not a case deserving "in limine" dismissal in the High Court. The High Court should have called upon the respondent to present its case, and then disposed of the matter on its merits.
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### Explanation:
3. In this appeal, the main contention is that having regard to the questions which arose in the case the High Court erred in dismissing the writ petition in limine. It is pointed out that in making its award the Industrial Court adopted the standard that a worker employed for 240 days or more in the year was entitled to the status of a permanent worker but nowhere did the Industrial Court consider whether for acquiring that status it was sufficient that the worker was employed for such period in one year alone, as for example in the present case inor continued to be so employed in successive years. The Industrial Court specifically referred to the respective periods of employment in subsequent years, but failed to notice that in each of those years the period fell far short of 240 days.4. The Industrial Court had also observed in its award that most of the 124 workers had been employed all the year round in the sugar factorys maintenance department, and said that this had not been disputed by the appellant. It is pointed out that in its writ petition, a copy of which is before us, this assumption in the award was specifically challenged and the High Court should have examined whether the basis for the Industrial Courts finding was warranted.5. We have heard learned counsel for the parties on these contentions, and we are of opinion, that the appellant is right. This was not a case deserving "in limine" dismissal in the High Court. The High Court should have called upon the respondent to present its case, and then disposed of the matter on its merits.
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